When a party to a lawsuit receives a discovery request, the receiving party usually responds by (1) producing the requested material, (2) objecting to the discovery request based on some legal or factual grounds, or (3) asserting that the material is privileged and producing a privilege log to the requesting party. Regardless of which of these actions the responding party takes, the requesting party is then aware of the existence (or nonexistence) of responsive materials. However, Texas Rules of Civil Procedure (TRCP) 193.3(c) allows for a responding party to remain completely silent about the existence of attorney communication made in anticipation of litigation. When utilized correctly, TRCP 193.3(c) is a powerful weapon behind which important-but-damaging information can be completely protected from the opposing party’s prying eyes.
TRCP 193.3 – Generally
When a party asserts a privilege in response to a discovery request, TRCP 193.3 controls the discovery process. In many instances, TRCP 193.3 allows the asserting party to withhold the privileged material, but TRCP 193.3 requires the withholding party to notify the opposing party of the privilege assertion. For example, suppose a business is sued for damages because its employee negligently injures someone. When the Plaintiff requests that the company produce the negligent employee’s medical records, the company could assert a privilege and withhold any medical records pertaining to medical conditions unrelated to the accident (e.g., medical records pertaining to the employee’s dermatitis), but the company would need to notify the Plaintiff of the withholding.
TRCP 193.3(c) – The Exemption
However, privileged materials falling under TRCP 193.3(c) are exempt from the privilege notification requirement. TRCP 193.3(c) applies when the privileged material involves “communication to or from a lawyer or lawyer’s representative or a privileged document of a lawyer or lawyer’s representative…” that is created in anticipation of litigation and for the purposes of prosecuting-or defending against-that litigation. In other words, when a company or person believes (or knows) that it will be sued, communications to or from its attorney about that litigation are most likely protected from disclosure under Rule 193.3(c). If the attorney investigates the accident scene and creates a report, that report is protected completely by 193.3(c) even if the report assigns fault to the company. When the opposing party requests such documents during discovery, the company does not even need to object to such a request, it can remain completely silent. Conversely, if the company directs its own employee (or some other investigator) to investigate the accident scene, any reports or information resulting from such an investigation must be produced to the opposing party. Even if the company objects, the opposing party will know that responsive materials exist.
Communications to or from an attorney and documents created by an attorney in anticipation of litigation may fall under the TRCP 193.3 exception. When communications and documents fall under the TRCP 193.3(c) those materials are completely protected and do not need to be disclosed to the opposing party. This absolute privilege is a powerful tool to protect against invasive discovery.
Tips and Practical Advice
• When an accident occurs, immediately retain an attorney and funnel all communication relating to accident through your attorney. This will allow your attorney to claim 193.3(c) protection, thereby minimizing possibly damaging documents that will need to be produced in discovery.
• Respond appropriately to discovery. If materials were created by an attorney, or if the materials are communications to or from the attorney, do not object on the ground of privilege. There is a strong chance that materials do not need to be disclosed at all. If you object, the opposing party might get the hint that some material exists.