SAN ANTONIO — Thomas J. Henry, the heavyweight San Antonio personal injury lawyer, is in a sticky situation over a disclosure that his firm records all phone calls — including conversations with expert witnesses.
Now, opposing counsel in cases
the flamboyant lawyer
’s firm is handling want to get their hands on those recordings.
The situation raises questions a legal ethicist says could be a “big deal.”
The issue arose after an attorney at
Henry’s firm
revealed in a September filing in federal court in Waco that it
“records all calls.”
As word of the disclosure spread, attorneys defending other personal injury cases brought by the firm began asking judges to order Henry to produce the recordings.
The Henry firm has called the clamor “a conspiracy” — and says the recordings don’t exist.
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That doesn’t sit well with San Antonio lawyer H.L. Buddy Socks, who is fighting to get recordings in three cases he’s defending. He and others argue they are subject to discovery, meaning the calls must be turned over as part of the exchange of evidence and legal information before trial.
A disclosure made in a filing in Waco federal court that the Thomas J. Henry law firm “records all calls” has led to what the firm calls “a conspiracy” among opposing law firms seeking records of calls in other cases.
“There is a serious issue going on at the Thomas J. Henry firm involving recording of thousands of calls with experts and non-client fact witnesses that have never been disclosed in probably hundreds of cases in state and federal court,” Socks said at a Nov. 3 hearing in San Antonio. “Not once have they ever identified or produced a single communication with a testifying expert witness.
“And what they told a federal judge in Waco, Texas, was ‘all calls are recorded,’” he added. “That’s a problem.”
In part, Socks and other defense lawyers want to see if Henry’s firm is coaching witnesses to say things that would help his clients’ cases. A September court filing in another of the cases put it this way: The recordings may reveal a plaintiff “attorney’s influence on an expert’s work or opinion.”
Despite its disclosure in Waco, Henry’s firm has denied it records all calls. The Henry lawyer who told the court that the firm does so is new to the firm and was “mistaken,” said attorney Robert P. Wilson, an attorney manager at the firm.
“We have nothing to produce,” he said at an Oct. 17 hearing. “There is nothing there. Never has been.”
Still, Wilson said details of the Waco court pleading have been “spread around everywhere to harass” the Henry firm in other cases — and not just in Bexar County.
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“Apparently, there is a conspiracy between defense firms to attack Thomas J. Henry Law firm with that pleading,” he said at a hearing in another case. A motion to produce recorded communications in a Dallas case was denied, he added.
A prolific promoter, Henry is known for publicizing big financial recoveries for clients injured in car wrecks, workplaces and operating rooms to attract even more business. His firm says on its website that it’s “the largest personal injury law firm in Texas” with more than 250 attorneys. It has more than 600 employees.
Claude E. Ducloux, an Austin lawyer who specializes in legal ethics, described the battle over the communications as a “big deal.”
“If the Henry firm is recording those communications, and the court finds that the defense lawyers have a right to see those recordings involving fact witnesses and experts, those recordings are likely to be immensely effective in challenging those witnesses if the defense lawyers can show or suggest what the witnesses were told what ‘would be helpful to say,’ or what they ‘needed to write’ to help the case,” Ducloux said. He is not involved in any of the cases.
Parking lot accident
The Waco case that’s attracting all the attention was filed in March 2021 in state District Court in Bell County in Central Texas.
Travis County resident Osvaldo Perez alleged he was sleeping in his tractor-trailer at a Love’s Travel Stop in January 2020 when his truck was struck by a U.S. Xpress Inc. truck. Perez, represented by the Henry firm, said he sustained “severe injuries,” and he sued the company and its driver for more than $1 million in damages.
U.S. Xpress, which had the case removed to U.S. District Court in Waco, dubbed the incident a “parking lot bump between two tractor-trailers.” Police were called, but no citations were issued and each driver drove his truck away after the collision, the company added.
In September, attorneys representing U.S. Xpress asked the judge to bar Henry’s firm from introducing almost 10,000 pages of documents on the grounds they were submitted two months after a deadline to exchange information in the case. They referred to it as an “untimely document dump” intended to gain a “tactical advantage.”
U.S. Xpress’ lawyers also said counsel for Henry’s firm could not agree to filing a motion to delay the trial.
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Less than a week later, attorney Eric Walker, who works at Thomas J. Henry Law in Austin and had just entered the case after another lawyer resigned from the firm for health reasons, filed his response opposing the request to strike the documents.
Walker also disputed U.S. Xpress’ lawyers’ assertion that he would not agree to a delay.
As proof, he attached to his filing a transcript of an Aug. 12 phone call with Jacqueline Altman — a Waco lawyer for U.S. Xpress — in which he told her he’d be agreeable to her filing an unopposed motion to continue, or delay, the trial instead of striking the documents.
Then, the recordings were introduced.
“Since the ethical rules on attorneys recording phone conversations were relaxed several years ago, the (Henry) firm records all calls,” Walker said in the filing. “The caller is notified at the beginning of the call that the conversation will be recorded.”
He added, “Lest there be any doubt as to the accuracy of the transcript, plaintiff will produce the audio recording to either the court or counsel upon request.”
The transcript shows that Walker told Altman he could avoid violating any Henry “firm edicts” if she filed an “unopposed” motion to continue the trial rather than an “agreed” motion. In its reply filed Sept. 20, U.S. Express said it didn’t want a delay.
The issue became moot when U.S. District Judge Alan D. Albright — five days before trial — granted U.S. Xpress’ motion for summary judgment and dismissed all claims against the company and its driver. The judge indicated a written order would be forthcoming, but it hasn’t been entered. The motion for summary judgment was unrelated to the failure to produce documents before the deadline.
‘Thank you for calling’
But since then, lawyers defending cases brought by Henry’s firm have seized on Walker’s representation that the firm records every call. The Waco case provides the basis for such requests.
Atop the transcript of the call Walker produced is the name RingCentral, a provider of cloud-based business communications solutions.
A RingCentral feature allows businesses to manually or automatically record incoming and outgoing calls.
The transcript he attached to his pleading starts with the receptionist answering the Aug. 12 call from Altman, the U.S. Xpress lawyer. “Thank you for calling Thomas J. Henry Injury Attorneys. This is Elsa. How may I help you?”
That appears to indicate that Henry’s firm automatically records calls, Socks, the defense lawyer, said at an Oct. 17 hearing in state District Court in Bexar County. He is defending FedEx Freight Inc. in a wrongful death case.
Not so, Henry’s firm responded.
“Not all calls are recorded,” Wilson, the attorney manager, told Judge Cathleen Stryker.
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David Prichard, a San Antonio lawyer for the FedEx driver, said he found Wilson’s response “troubling.” Wilson has provided the court no guidance as to when a call is recorded or when it isn’t recorded.
“We cannot use this as a sword and a shield, and it strikes me that that’s exactly what is happening,” Prichard said during the hearing. “When it suits their purpose, it’s recorded, and here’s the transcript from RingCentral. When it doesn’t suit their purposes, (it’s) we don’t have them.”
How the Henry firm operates or what it does or doesn’t do falls under “proprietary work product” of the Henry firm and therefore doesn’t need to be disclosed, Wilson said.
“What I cannot and I should not … have to do is explain with the defense counsel present the inner workings of our firm as how I know not all calls are recorded,” he added, calling those “trade secrets.”
Recording of phone conversations in Texas is legal as long as one of the parties consents, so there are no allegations any law was broken.
At an Oct. 14 hearing, Socks told Judge Norma Gonzales he has called the Henry firm multiple times and heard a message that the call is being recorded. He doesn’t buy the explanation that Walker was mistaken when he said all calls are recorded.
“I sense that (Henry’s firm says) he was mistaken because, in fact, this information would be discoverable,” Socks said. Henry’s “firm knows it. They’re very capable lawyers. They know what is discoverable and what is not discoverable. And the decision that they have thousands upon thousands of calls they have to produce is highly problematic.”
Socks declined to comment for this story, but Lonny Hoffman, a law professor at the University of Houston Law Center, said he expects defense lawyers will subpoena RingCentral for any records of phone calls it may maintain for the Henry firm.
Recording all calls isn’t a wise move for a law firm, Hoffman said.
“What would make this an ill-advised or a poor decision is if you have this blanket policy of recording everything,” he said. “Like a big net, you’re going to catch a lot of byproduct that you don’t want to catch.”
Jason Davis, one of the lawyers representing Henry’s firm in the disputes, did not respond to requests for comment.
‘Looming’
One of the cases for which Socks has requested phone recordings was filed by Henry’s firm on behalf of the family of Christopher Talamantez II. He was a passenger in a vehicle on Interstate 35 near Fisher Road on Jan. 10, 2018, when it was allegedly struck by a FedEx 18-wheeler. The vehicle was pushed to the side of the road and caught fire. Talamantez died from his injuries, the lawsuit said. His family seeks more than $1 million in damages.
The family has said the FedEx driver was “reckless” because he was texting and streaming data on his cell at the time of the wreck and in the minutes leading up to it, in violation of company policy. The driver admitted deleting texts within five minutes of the wreck, court records show.
FedEx has blamed the driver of the vehicle Talamantez was in for causing the accident. The driver was unlicensed and impaired after allegedly taking Xanax, a sedative to treat anxiety and panic disorders, the company said. It can cause drowsiness. FedEx also alleged the driver “stopped and was reversing” on the interstate at the time of the wreck.
At the Oct. 17 hearing before Judge Stryker, Socks said it’s “particularly important” to get any recorded calls in the case because of the testimony of one of the plaintiffs’ expert witnesses. The expert examined what’s known in vehicle accidents as “looming,” a driver’s ability to perceive the rate at which they are approaching a stopped or slow-moving vehicle ahead.
The expert created an analysis in the case but deleted it and used another method to determine that FedEx was liable for the accident, Socks told the judge.
“That phone call would reveal what (the expert did), the discussions she had with this … law firm, and why they then had her, or why she decided to dispense with the concept of looming,” he said.
Wilson reiterated to the court that the Henry firm does not record all calls and the statement Walker made in the Waco case “was simply an error.”
Texas court rules changed early last year to limit which types of communications with testifying expert witnesses may be discovered.
Those communications are protected from discovery, but with some exceptions. Among them: If the communications “identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed” or if they “identify assumptions that the party’s attorney and that the expert relied on in forming the opinions to be expressed.”
Disqualification?
Judges Gonzales and Stryker each issued orders directing Henry’s law firm to produce recorded communications for an “en camera” inspection — meaning the justices will privately review any materials produced to determine whether they should be turned over to the defense lawyers.
Henry’s legal team filed a motion for “clarification or reconsideration” of Gonzales’ Oct. 24 order, which covers any recorded conversations firm lawyers had with two experts and “any person (excluding clients) having knowledge of relevant facts” in the case.
While Henry’s lawyers have told Gonzales there is nothing to produce, they also said her order is “unduly burdensome with respect to everybody beyond what the rules allow.” The review the order contemplates would be “time-consuming and cost-prohibitive,” they add.
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“Even assuming, conservatively, that each of the firm’s (600 employees) makes and receives 15 calls per day,” they said, that computes to 9,000 calls a day, 45,000 a week and more than 2.3 million a year.
Stryker added a hand-written note in her Nov. 4 order stating the ruling is subject to a motion for reconsideration.
Meanwhile, Socks has argued that if Henry’s firm recorded calls with witnesses but did not preserve them, that would raise a “potential spoliation issue.” That means he could ask the judge at trial to instruct the jurors that they can take a “negative inference” against the party that destroyed evidence.
The Henry firm’s lawyers have filed motions to stay the Bexar County cases pending an inquiry into whether Socks and his law firm should be disqualified. Socks admitted he had “secretly contacted former employees of the TJH firm seeking information” about the cases, Henry’s team said in the court filings.
“There is a lot that is unknown about (Socks’) efforts to improperly obtain privileged and proprietary information,” the documents stated. “But what little we do know suggests serious ethical and legal violations.”
The motions have yet to be heard, but Socks disputed the accusation, calling it a “red herring.”
“It is, we don’t like the message, so we are going to shoot the messenger,” Socks said at the Nov. 3 hearing.
The three cases Socks is defending in Bexar County are scheduled to go to trial next year. The Talamantez family’s case is up first, set for Jan. 23.
