1/21/2015 4:13:14 PM

Chris Daniel - District Clerk Harris County

Envelope No. 3850781
By: DANIEL FLORES
Filed: 1/21/2015 4:13:14 PM

NO. 2014-55319

v.
RENEE BYAS,
Defendant and
Counter-Plaintiff.

IN THE DISTRICT COURT OF

HARRIS COUNTY, TEXAS

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HOUSTON COMMUNITY COLLEGE,

Plaintiff and
Counter-Defendant,

55TH JUDICIAL DISTRICT

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PLAINTIFF HOUSTON COMMUNITY COLLEGES

MOTION FOR PROTECTIVE ORDER PURSUANT TO RULE 192.6

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On June 6, 2014, Plaintiff Houston Community College (HCC or the College) placed

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its General Counsel, Defendant Renee Byas, on administrative leave, because the recently

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appointed Chancellor of the College, Dr. Cesar Maldonado, had lost faith in Byass ability to

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perform her job. That day, the Chancellor instructed Byas not to use her computer after being

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was placed on leave. Despite these instructions, Byas retreated to her office to email documents

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from her HCC computer to personal email accounts, as well as download documents to at least

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one flash drive. The documents she emailed herself and/or saved included confidential attorney-

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client work product and attorney-client privileged communications with HCCs in-house counsel

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and/or outside counsel. It is the College, not Byas, who is the legal owner of these documents

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and the holder of the privileges that attach to them.

Nevertheless, Byas now seeks to use these misappropriated documents in this litigation
against her former employer and client. She has produced many of these documents back to the
College in response to HCCs requests for the production, without any confidentiality
designations at all. In blatant disregard of her duties as the Colleges former attorney, Byass
counsel has even leaked privileged documents to local press in an attempt to curry favorable

coverage. See Ex. A.1 In order to protect the privileged nature of these communications and
documents, and prevent Byas from abusing her former office and exploiting the confidences of
her prior attorney-client relationship, the College seeks a protective order to ensure that such
documents are not disclosed to the public and, accordingly, must be filed under seal. To be

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clear, HCC does not currently seek an order permitting it to withhold any documents from
discovery. Instead, HCC respectfully requests this Court enter the attached Protective Order
pursuant to Rule 192.6 of the Texas Rules of Civil Procedure requiring the parties to maintain

FACTS

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I.

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the confidentiality of HCCs confidential, privileged documents.

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The facts germane to the issue raised in this Motion are not complicated. The College

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hired Byas to serve as its General Counsel in 2008. From January 2013 until May 2014,

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however, Byas also served as the Acting Chancellor of the Collegea temporary position that

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she held while the College searched for a permanent chancellor.2 In May 2014, the College hired

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Dr. Maldonado as its permanent Chancellor, at which time Byas resumed her General Counsel

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duties. In both of Byass capacities (General Counsel and Acting Chancellor), she had access to

Under the Texas Rules of Professional Conduct, she also had a

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and communications.

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a litany of attorney-client privileged, work-product privileged, and other confidential documents

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responsibility to keep those confidences, even after her termination. See Tex. R. Disciplinary P.
1.05. She has failed to honor this responsibility.
After she was placed on administrative leave, Ms. Byas, in contravention of direct
instructions, took with her hundreds of the Colleges privileged and confidential documents.

HCC has redacted the privileged information from the version of this exhibit being filed publicly but will
provide an unredacted copy to the Court at the hearing.
2
While Byas served as Acting Chancellor, a different individual from the Colleges Office of General
Counsel, Destinee Waiters, served as Acting General Counsel.

These include communications with outside counsel, legal opinions of outside counsel, and
internal legal communications with the Colleges General Counsel Office (including
communications with Byas in her General Counsel capacity as well Ms. Waiters in her Assistant
and Acting General Counsel capacities). It was exactly this sort of behavior that convinced the

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College to first place Byas on administrative leave and then ultimately terminate her
employment. Furthermore, as evidenced by the documents Byas has produced in discovery,
Byas had also been forwarding emails and attachments from her HCC email address to her

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personal email address for years.

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Since being placed on leave, Byas relied on these attorney-client communications and

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documents to support her case during a closed, nonbinding termination hearing, and she intends
She has already produced dozens of privileged

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to rely on them here, in public court.

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communications and documents in this litigation. However, the College, as the holder of the

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privilege on these documents, is entitled to enforce their confidentiality.

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Further, Byass counsel has leaked at least one document containing privileged

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communications to local reporters in an attempt to obtain favorable coverage of this lawsuit. See

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Ex. A (redacted by HCC). Not only does Byas seek to expose the Colleges confidential

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documents, but she apparently seeks to abuse her prior position of confidence at the College to

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leverage an advantage in this case. There could not be a more compelling set of facts to support
the entry of a protective order. Nevertheless, Byas has rejected the Colleges reasonable request
to enter into a narrow protective order that allows parties to designate as Confidential: (a)
privileged communications produced in the lawsuit, and (b) any other documents that HCC
would not be required to share with the public under the Texas Public Information Act. Because
of this, the College is forced to turn to this Court.

II.

LEGAL AUTHORITIES AND ARGUMENT

In litigation, a public entity is treated as any other litigant. Houston Chronicle Publg Co.

v. Hardy, 678 S.W.2d 495, 501 (Tex. App.Corpus Christi 1984, no writ).

A public entity

enjoys the same attorney-client privileges as any other litigant. See, e.g., Health & Human

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Servs. Commn v. McMillen, No. 03-13-00303-CV, 2015 WL 134686, at *2 n.1 (Tex. App.
Austin Jan. 8, 2015, no pet. h.) (applying attorney-client privilege rules to the Texas Health and
Human Services Commission); Abbott v. City of Dallas, 3-13-00686-CV, 2014 WL 7466736, at

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*1 (Tex. App. Austin Dec. 23, 2014, no pet. h.) (recognizing that City was entitled to withhold

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attorney-client privileged documents from production under the TPIA despite missing deadlines

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under the statute). And public entities are entitled to receive protective orders in order to protect

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privileged or other confidential information from discovery. See, e.g., Flores v. Fourth Court of

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Appeals, 777 S.W.2d 38 (Tex. 1989); In re Jobe, 42 S.W.3d 174 (Tex. App. Amarillo 2001, no

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pet.); Houston Chronicle Publg Co., 678 S.W.2d at 508.

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A litigant may have documents protected from public disclosure if there is a specific,

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serious and substantial interest which clearly outweighs (1) the presumption of openness, (2) any

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probable adverse effect that sealing will have upon the general public health or safety, and no

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less restrictive means than sealing records will adequately and effectively protect the specific

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interest asserted. TEX. R. CIV. P. 76a.

This case was tailor-made for an order of protection.

The College currently seeks

protection (via confidentiality designations) for only two classes of documents:

(1) those

documents that contain attorney-client privileged communications and/or work product and (2)
those documents that fall into one of the few, narrow exceptions that the Texas legislature has
expressly carved out, in light of their sensitivity, of the Texas Public Information Act (TPIA).

It is self-evident that the College is entitled to protection for these documents against public
disclosure.
First, as regards the Colleges attorney-client privileged communications and documents
misappropriated by Byas, the College has a substantial interest in protecting the confidentiality

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of those documents. The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law. In re XL Specialty Ins. Co., 373 S.W.3d 46, 49
(Tex. 2012) (quoting United States v. Zolin, 491 U.S. 554, 562 (1989)). The attorney-client

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privilege promotes free discourse between attorney and client, which advances the effective

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administration of justice. Id. As the confidentiality of attorney-client communications and work

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product is one of the bedrock assumptions of our legal system, the adverse effects of unraveling

Further, the College does not have a less restrictive means to prevent

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law ordinarily requires.

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it and destroying the Colleges privilege greatly outweighs any presumption of openness that the

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the destruction of the attaching privileges. Either the parties must file these documents under

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seal, or the privilege risks being destroyed. It is as simple as that. As Byas has already taken the

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documents from the College, the College has no other remedy other than to request the entry of a

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protective order.

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Second, the College similarly has a substantial interest in shielding any documents from

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the public that are not otherwise discoverable through an open records request under the TPIA.
In its wisdom, the Texas legislature enacted the TPIA in order to provide public access at all
times to complete information about the affairs of government and the official acts of public
officials and employees. TEX. GOVT CODE 552.001. However, in doing so, the legislature
carved out a few narrow exceptions to TPIA requests. There is certain information that is not
obtainable through open records requests. These include not only attorney-client information

and communications 3 but also privacy and personnel records to the extent they contain
confidential information,4 law enforcement information regarding the investigation of crimes or
internal records,5 inter-agency memoranda,6 and information submitted for competitive bids to
the extent that information would give advantage to a competitor or bidder. 7 The Texas

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legislature specifically exempted these items, among others, from public information requests
because of their sensitive nature. To be clear, the College does not seek an order protecting it
from producing such information to Byas in this litigation should it otherwise be discoverable

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under the Texas Rules of Civil Procedure; HCC simply seeks to protect its substantial interest in

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protecting the confidentiality of these documents and seeks an order allowing the College to

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designate such materials as confidential. The Texas legislature has recognized this interest.

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Further, the College has no other means in which to protect this information, to the extent it has

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already been misappropriated by Byas or to the extent that the College is required to produce it

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in discovery.

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The relief the College requests here is narrow. For both classes of documents at stake

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here, there is no public interest in seeing those documents disclosed to persons other than the

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parties, counsel, and the Courtnotwithstanding the fact that HCC is a public entity, as

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evidenced by the TPIA exceptions. Texas law expressly recognizes the sensitivity of such

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documents and the compelling reasons why they should be protected. It is simply unjustifiable
that the Colleges documents be exposed in public court when the State of Texasthrough its
historical recognition and protection of the attorney-client privilege rules or through its express
E.g., TEX. GOVT CODE 552.103 (litigation exception); id. 552.107 (attorney-client privilege); id. 552.111
(work product privilege).
4 E.g., id. 552.024 (personal information of employees or family members); id. 552.117 (same); id.
552.136 (credit card information); id. 5552.140 (military veterans discharge records).
5 E.g., id. 552.108.
6 E.g., id. 552.111.
7 E.g., id. 552.104, 552.110.
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carve outs of the TPIAhas already determined that these documents should not be made
publicly available.
III.

CONCLUSION
For the foregoing reasons, the College respectfully requests that the Court order that the

privileged information from public disclosure.

Respectfully submitted,

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/s/ Ayesha Najam

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attached Protective Order be entered so that the College may protect its confidential and

ATTORNEYS FOR PLAINTIFF /

COUNTER-DEFENDANT
HOUSTON COMMUNITY COLLEGE

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Grant J. Harvey
GIBBS & BRUNS, LLP
State Bar Number: 09177700
gharvey@gibbsbruns.com
Ayesha Najam
State Bar Number: 24046507
anajam@gibbsbruns.com
Ross M. MacDonald
State Bar Number: 24087956
rmacdonald@gibbsbruns.com
1100 Louisiana, Suite 5300
Houston, Texas 77002
Tel: 713.650-8805
Fax: 713.750.0903

CERTIFICATE OF CONFERENCE
I certify that between December 29, 2014 and January 21, 2015, I conferred in good faith
with counsel for Defendant regarding the relief sought in this Motion, and that the Motion is
opposed.

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/s/ Ayesha Najam

Ayesha Najam

CERTIFICATE OF SERVICE

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Rusty Hardin
State Bar No. 08972800
rhardin@rustyhardin.com
Robert Galatas
State Bar No. 00787509
bgalatas@rustyhardin.com
Jennifer Brevorka
State Bar No. 240182727
jbrevorka@rustyhardin.com
1401 McKinney Street, Ste. 2250
Houston, TX 77010
Telephone: (713) 652-9000
Facsimile: (713) 652-9800

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I certify that on this day January 21, 2015, a true and correct copy of the foregoing
instrument was served upon the following counsel of record via the courts electronic filing
system and by email:

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/s/ Ayesha Najam

Ayesha Najam