When a beneficiary thinks a trust has been mismanaged, the first thing he needs is the paper. Bank statements, tax returns, ledgers, and the accountant’s workpapers usually tell the real story. The trouble is that the paper is often not where the lawsuit is. The trust case is in Texas, but the trustee’s accountants may be in Louisiana, Oklahoma, or New Mexico.
A Texas court can’t simply order an out-of-state accounting firm to hand over its files. To get records from a non-party in another state, you have to go through that state’s courts and play by that state’s rules. So what happens when the other state has extra protections for the very people you are trying to subpoena?
That was the question in Marshall v. Marshall, No. 23-132 (La. App. 3 Cir. Nov. 22, 2023). A trust beneficiary in a Texas probate case used Louisiana’s version of the Uniform Interstate Depositions and Discovery Act to subpoena two Louisiana accounting firms. The firms fought back. The court had to decide whether the subpoenas were valid even though the beneficiary skipped a hearing that Louisiana law requires before an accountant can be subpoenaed, and whether the whole fight was moot because the Texas case had already gone to trial.
Facts and Procedural History
The case grew out of a long-running family fight. According to the briefs, Preston Marshall had filed many lawsuits against his mother, Elaine Marshall, starting in 2015. This one centered on the Grandchildren’s Trust No. 2, which was in a Texas probate court. Preston’s grandfather, J. Howard Marshall II, created the trust in 1987 for his two grandsons, Preston and Pierce. Preston was named beneficiary, and Elaine was named a co-trustee. In August 2021, Preston took over as trustee.
Preston then filed a motion in the Texas case to compel Elaine and two accounting firms to produce documents. The firms, Terranova Williams Klein, CPA’s and Ehlers & Associates, CPAs, were in Louisiana. They were not parties to the Texas case. So in January 2022, Preston went to a Louisiana district court in Calcasieu Parish and used the Louisiana Uniform Interstate Depositions and Discovery Act, La. R.S. 13:3825, to have subpoenas served on the firms. He wanted accounting records and depositions. The subpoenas were served on January 31, 2022.
The firms objected. Their argument was simple: Louisiana Code of Evidence article 517 says you can’t subpoena an accountant for information about a client unless a court first holds a contradictory hearing (a hearing with notice to the other side) and finds that the information isn’t privileged. Nobody had held that hearing. On February 22, 2022, the firms moved to quash the subpoenas and asked for a protective order. Preston responded with a cross motion asking the court to hold a contradictory hearing and approve the subpoenas or issue new ones.
After a hearing, the trial court signed a judgment on August 1, 2022. It ordered the firms to comply with three of the six document requests. For the other three, it ordered the firms to produce a privilege log and the documents for an in camera inspection, so the judge could decide privately whether they were relevant and whether the accountant-client privilege protected them. The firms appealed.
While the appeal was pending, the Texas case was tried to a jury and a judgment was signed. The firms asked the Louisiana court of appeal to add the Texas judgment to the appellate record and to dismiss the appeal as moot. Preston admitted the case had been tried, but argued that Elaine might appeal, the case might have to be retried, and as sole beneficiary and trustee he still needed the records to run the trust.
How Out-of-State Discovery Works in a Texas Trust Case
To understand why the subpoenas failed, you first have to understand how a beneficiary gets trust records in the first place. Texas gives beneficiaries real tools. Under Texas Property Code § 113.151(a), a beneficiary may make a written demand on the trustee for “a written statement of accounts covering all transactions since the last accounting or since the creation of the trust, whichever is later.” If the trustee doesn’t deliver it within 90 days, the beneficiary can sue to compel it. And once a lawsuit is filed, the beneficiary has the usual discovery tools against the trustee: document requests, interrogatories, and depositions.
But those tools work on the trustee. The trustee’s accountants are a different story. They are not parties, and if they are outside Texas, a Texas subpoena doesn’t reach them. That is where the Uniform Interstate Depositions and Discovery Act comes in. Louisiana is one of many states that have adopted it. The idea is that you take the subpoena from the Texas case to a court clerk in the state where the witness is, and the clerk issues a local subpoena. It is a shortcut, but it isn’t a free pass. The Louisiana version says that Louisiana’s own discovery rules apply. Subsection (E) provides that “The Code of Civil Procedure and any other laws or district court rules of this state governing a deposition, production of documents or other tangible items, or an inspection of premises apply to discovery under Subsection C of this Section.”
The official comment to that subsection explains why. Louisiana “has a significant interest in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery request,” so “the discovery procedure must be the same as it would be if the case had originally been filed in this state.”
In practice, that means the Texas lawyer is now litigating under the other state’s rules. And Louisiana has an accountant rule that Texas litigants may not expect. Article 517 provides, in part, that “Neither a subpoena nor a court order shall be issued to an accountant” to reveal information about a client unless the court first holds a contradictory hearing, with at least ten days’ actual notice to both the accountant and the client. At that hearing, the party seeking the records has to show that the information isn’t privileged, that it is essential to its case and not merely peripheral, that the purpose isn’t to harass, that the subpoena is specific and reasonably limited, and that there is no practicable alternative way to get the information.
How the Court Decided the Subpoenas Had to Be Quashed
The court first dealt with mootness. It had already refused, in a separate July 26, 2023 ruling, to add the Texas judgment to the record, because that judgment came after the trial court ruled and the trial court never considered it. In that ruling the court said that “an appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence.” In the November opinion, the court added that Louisiana courts can’t take judicial notice of judgments from other courts. They have to be offered into evidence in the trial court. So the court said: “Since we have no proof of judgment in the Texas court which occurred after the appeal was granted, we will address the arguments based on the record before us.” In other words, the firms’ best practical argument, that the Texas case was over, never got off the ground because nobody put the Texas judgment into evidence below.
Then the court turned to the subpoenas. It started with the uniform act and was blunt: “It is clear that Louisiana procedural and evidentiary laws apply to a foreign subpoena issued in this state.” That meant article 517 applied to Preston’s subpoenas just as if the trust case had been filed in Louisiana.
The real question was timing. Preston eventually got a contradictory hearing, but only after the subpoenas had already been issued and served, when the trial court heard the firms’ motion to quash. Was that good enough? To answer that, the court looked to article 508, the nearly identical rule for subpoenas to lawyers, which was already on the books when article 517 was added in 2001. Louisiana courts had read article 508 to require the hearing first. In Succession of Willoz, the First Circuit held that a trial court abused its discretion by not quashing a subpoena to the decedent’s attorney when no hearing was held before it was issued. Porter v. Baton Rouge Police Department reached the same result for a subpoena to an assistant attorney general who wasn’t a party to the case.
The court also relied on Judge Windhorst’s concurrence in Renton Properties, LLC v. 213 Upland, LLC, which explained why an after-the-fact hearing on a motion to quash doesn’t fix the problem. The point of the rule is to protect privileged information before anyone sees it. As the concurrence put it:
Privileged information, once revealed, or even probed, is not protected by being disregarded by the trier of fact.
The concurrence also pointed out that skipping the hearing flips the burden of proof. The rule puts the burden on the party seeking the subpoena to prove the required findings. When the subpoena issues first, the witness ends up having to prove why it should be quashed.
The court considered one possible way out. In State v. Gaubert, a party lost the procedural protection of the parallel criminal rule by not objecting until the middle of trial. But that didn’t help Preston. The firms objected right away. Their first filing, the February 22, 2022 motion to quash, raised article 517.
So the court held: “We agree that Article 517 clearly requires a contradictory hearing before the issuance of subpoenas.” It added that this was especially true where the uniform act is being used to serve out-of-state subpoenas on Louisiana citizens for a case in another state. Because skipping a required hearing is legal error, the court didn’t defer to the trial judge. It found that “the trial court committed legal error in not granting the motion to quash since Preston did not hold a contradictory hearing before the subpoenas were served on the accounting firms.” The court reversed, granted the motion to quash, sent the case back to the trial court, and charged all costs to Preston.
The Takeaway
Marshall is a Louisiana case, but the lesson is for anyone litigating a Texas trust or estate dispute. When the records you need are in another state, the other state’s rules control how you get them. The uniform act makes it easier to get a subpoena issued, but it doesn’t let you skip the local protections for non-party witnesses. Here, a beneficiary who was also the trustee, with a strong claim to the records, spent nearly two years fighting over discovery and still lost because he didn’t ask for a hearing before the subpoenas went out.
If you need records from a trustee’s out-of-state accountant, banker, or lawyer, check that state’s evidence code before anything is served. Find out whether it has a pre-subpoena hearing rule like article 517, give the notice it requires, and build the time into your Texas trial schedule. Remember too that the trustee is the first and easiest source. A written demand for an accounting under Property Code § 113.151 and ordinary discovery against the trustee in the Texas case may get you most of what you need without a second lawsuit in another state. And if you are on the other side, raise the objection right away. The firms in Marshall won because they objected in their very first filing.
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The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
