News

When we consider the attorney-client privilege, we often think of the confidential and protected relationship between an attorney and client that exists to facilitate the free flow of information and effective legal representation. When cases involve businesses, litigation can involve complex issues relating to the client’s body of work, sometimes making the client the best subject-matter expert in the dispute. Based on a recent decision from the Supreme Court of Texas (the “Court”), attorneys are now assured that the attorney-client privilege is not waived when their clients are also their expert witnesses.

In In Re City of Dickinson, No. 7-0020, 2019 Tex. LEXIS 165 (Tex. Feb. 15, 2019), the dispute revolved around whether Texas Windstorm Insurance Association (“Texas Windstorm”), a property insurer, had underpaid insurance benefits related to a Hurricane Ike claim made by the City of Dickinson (the “City”). In responding to the City’s motion for summary judgment, Texas Windstorm included an affidavit of its corporate representative, who also happened to be its senior claims examiner.

The affidavit offered factual and expert opinion testimony in opposition to the summary judgment motion. The City subsequently learned during the corporate representative’s deposition that his affidavit had been revised in a series of emails between him and Texas Windstorm’s counsel. This prompted the City to move to compel production of the emails and all other materials “provided to, reviewed by, or prepared by or for” the corporate representative in anticipation of his expert testimony. Texas Windstorm claimed, however, that the emails were protected by the attorney-client privilege. The trial court disagreed and granted the motion to compel. The intermediate appellate court conditionally granted Texas Windstorm’s mandamus petition, holding that the emails were privileged notwithstanding the corporate representative’s role in the case as a testifying expert witness. The City then filed a mandamus petition with the Court, which it considered.

In connection with the mandamus petition, the Court addressed whether Texas Rules of Civil Procedure 192.3 and 194.2 operate to waive the attorney-client privilege with respect to a client’s own expert testimony. Rule 192.3 addresses the scope of discovery in Texas. Under Rule 192.3(e)(6), with respect to a testifying expert, “a party may discover . . . all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s testimony.” (emphasis added). Focusing on use of word “may,” the Court concluded that nothing in the language of Rule 192.3 permits discovery of testifying expert materials when the materials are attorney-client privileged.

The Court then turned to Rule 194.2, which provides for a discovery tool called a “request for disclosure.” Under Rule 194.2, “[a] party may request disclosure of . . . all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for [a testifying expert witness] in anticipation of the expert’s testimony.” (emphasis added). Similar to its construction of Rule 192.3, the Court explained that the word “may” means that while Rule 194.2 permits a party to request disclosure, “it does not require disclosure.” In other words, Rule 194.2 allows a party to request testifying expert materials, “subject to the other rules of discovery.” As such, the Court held that Rule 194.2 does not require disclosure of testifying expert materials that are also attorney-client privileged.

As more and more cases involving complex technologies are entering the courtroom, it is important to keep abreast of decisions involving expert witnesses. As discussed above, sometimes the best expert witnesses are the clients themselves. Understanding the contours of privileges applicable to these witnesses helps maximize their effectiveness in a case.

Houston, Texas Commercial Litigation Attorneys

Okin Adams is a boutique Texas law firm assisting businesses of all sizes with the legal, financial, and strategic challenges they frequently face. We provide our clients with business-based, practical solutions to these challenges by applying years of experience in the areas of bankruptcy, commercial litigation, and corporate transactions.