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2.15.19

02.15.19

Last week the Texas Supreme Court issued three opinions. One opinion was of interest.

In In re City of Dickinson, the court decided whether a party, the Texas Windstorm Insurance Association (“Association”), waived both the attorney-client and work-product privileges as to documents given to or prepared by an expert who is also the party’s employee. In trial court, the Association mistakenly produced e-mails between its claims examiner and its attorneys in response to the city’s request for production. The Association, arguing the e-mails were privileged, moved under civil procedural rule 193.3(d)’s snap-back procedure for the city to delete them. The Appeals Court reversed the trial court’s production order, rejecting the lower court’s reasoning that the privilege doesn’t apply to a testifying expert’s materials.

The Texas Supreme Court held that the Appeals Court did not abuse its discretion because the discovery rules do not waive the attorney-client privilege when a client or its representative offers expert testimony. The city argued that the language of the discovery rules clearly require production of documents furnished to or by a testifying expert, and make no exception for when that expert is a party or party employee, thus waiving the privilege. The Association, however, framed the issue as whether a party with specialized knowledge who wants to testify must waive the privilege to do so. Because Rule 192.3 does not otherwise waive the attorney-client privilege to withhold testifying expert materials from discovery, these attorney-client communications remain privileged under this rule. Though the city was permitted to request the e-mails under Rule 194.2, the same rule did not require the disclosure of otherwise privileged materials.

Finally, because the e-mails in this case are covered by the attorney-client privilege, Rule 193.3(d)’s snap-back provision was a proper remedy and the Court of Appeals was correct in overturning the trial court’s rejection of the Association’s proper motion.

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