Texas Business Court Decision – July 16, 2026

No. 25-BC01B-0011   Synergy Thermogen, Inc., et al v. Blackbrush Oil & Gas, L.P., et al. (First Division, Judge Whitehill)   2026 Tex. Bus. Ct. 47    25-bc01b-0011-synergy-thermogen-v-blackbruch-oil-gas-2026-tex-bus-47.pdf

Discovery – Work Product.

Background. The Synergy plaintiffs develop clean-energy technology that converts waste vapors and heat into usable energy. Defendant Blackbrush Oil & Gas (Blackbrush) is an oil and gas company, and Synergy NC Investments (NCI) is an investment entity Blackbrush formed to invest in the Synergy plaintiffs. The parties entered into several contracts to deploy and test Synergy technology, and Synergy later sued for breach of the contracts.

During litigation, a former Synergy employee, Todd Walker, called a Blackbrush agent to discuss issues related to the lawsuit. Word of the call reached NCI representatives  and three of them arranged a follow-up call with Walker. At the direction of NCI’s counsel, Ward, one of the NCI representatives, took notes of the call, which were later typed and sent to counsel for review. Synergy learned of the notes’ existence through a deposition and sought their production. NCI resisted, and the dispute proceeded through status conferences, letter writing, and an in camera review by the court. In a June 18 order, the court ordered NCI to produce the notes under an “Attorneys’ Eyes Only” designation pursuant to the parties’ agreed protective order. This memorandum opinion further explains the basis for the court’s ruling.

Issues.

1. Are the notes discoverable work product? After applying the applicable law, the court concludes the notes are not core work product nor noncore work product because they: (a) do not contain mental processes from an attorney or attorney’s representative; and (b) Synergy has shown a sufficient need for the notes, and it would be an undue burden to obtain the information in them by other means.

Holdings.

1. The notes are not protected core work product. Although NCI’s counsel directed Ward to take notes, neither Ward nor any other call participant was an attorney or attorney’s representative under Rule 503(a)(4), and the court’s in camera review confirmed the notes contained only factual summaries akin to meeting minutes, and not mental impressions, opinions, or legal theories of either an attorney or attorney representative. See TEX. R. CIV.P. 192.5(b)(1).
2. Turning to noncore work product, the court found NCI had provided prima facie evidence that the notes were  “material prepared…in anticipation of trial” and so were noncore work product. However, noncore work product is discoverable if the party seeking it can show a substantial need and undue hardship.  Synergy demonstrated substantial need given its former employee Walker’s access to confidential information and the uncertainty about what he may have disclosed in his conversations with Blackbrush. Synergy also showed undue hardship: it had deposed three of the four call participants, none of whom recalled specifics, and only learned that Ward participated in the  call after fact discovery had closed, depriving it of a meaningful opportunity to depose him The court rejected NCI’s argument that litigation-funding privilege issues affected the analysis, finding the question was not material to Synergy’s substantial-need showing.
3. The court orders production of the notes under an Attorneys’ Eyes Only designation pursuant to the parties’ protective order in the case.