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Back to Basics: Withholding Privileged Documents in Discovery

Generally, in Texas, a party to a lawsuit may request and obtain discovery about anything so long as the information or documents sought are (1) relevant and (2) not privileged. See TRCP 192.3(a). Importantly, the party from which the information or documents is requested, is required to produce documents or tangible things within the party's possession, custody, or control. See TRCP 192.3(b).

Practically speaking, relevancy is a low bar; therefore, courts tend to favor production unless a privilege applies. The Texas Rules of Evidence enumerates a host of privileges that a party may apply, so the question becomes: how does one properly claim a privilege?

Asserting a Privilege and Producing a Privilege Log

Under Texas Rule of Civil Procedure 193.3, a party who asserts a privilege in response to a discovery request, must state ... that:

1. Responsive documents are being withheld;

2. Which discovery requests relates to the withheld materials; and

3. The privilege(s) asserted.

Once the requesting party receives a privilege claim, then it may request a privilege log, which the party claiming the privilege must create/produce a privilege log within 15 days of receiving the request.

The privilege log must include:

1. a description of the withheld documents/materials sufficient for the parties to assess whether the privilege truly is applicable (but not so detailed or specific that the description discloses too much information and waives the privilege); and

2. asserts a specific privilege for each item/group of items.

Once this process is completed, the party requesting the documents, may set a hearing with the Court to determine whether the privilege was properly asserted and the documents were properly withheld.

Exemption to the Privilege Rule

Significantly, there is one very important exception to the requirement to provide a withholding statement. Under TRCP 193.3(c), a party may withhold "privileged communication to or from a lawyer or lawyer's representative or a privileged document from a lawyer or lawyer's representative" without following the above-outlined requirements if the communication is:

(1) created or made from the point at which a party consults a lawyer with a view to obtaining professional legal services from the lawyer in the prosecution or defense of a specific claim in the litigation which discovery is requested, and

(2) concerning the litigation in which discovery is requested.

Takeaways:

1. Claiming privilege requires more than a bare assertion that information sought is privileged.

2. Consider preparing a privilege log in anticipation of the opposing party's request.

3. Carefully consider whether claiming a privilege is worth the battle in light of the nature of the document(s) and the goals or concerns of your client.

4. Retain an attorney as soon as litigation is anticipated and route all communications and documents concerning the litigation/claim through the attorney.

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The Bassett Firm

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