Attorney-Client PrivilegeThe Texas Supreme Court recently heard a mandamus petition concerning expert testimony and attorney-client privilege.

The City purchased a commercial windstorm policy from the client insurance company. In the underlying litigation, the City alleged that the client hadn’t paid all it owed under the policy for property damage caused by Hurricane Ike. The dispute here stemmed from a motion for summary judgment filed by the City on causation. In responding to the motion, the client included the affidavit of its corporate representative and senior claims examiner. The claims examiner’s affidavit provided both factual and expert opinion testimony on the client’s behalf.

The City argued that email communications in the underlying action between an attorney and his client about the client’s expert testimony were discoverable. The City argued that as the client’s opposing party, it was entitled to discover “all documents . . . provided to, reviewed by, or prepared by or for [an] expert in anticipation of a testifying expert’s testimony.”

The trial court agreed and ordered the client to produce the emails. The client then sought mandamus relief in the court of appeals. That court found that the communications were protected from disclosure and directed the trial court to vacate its order compelling their production.

The City discovered that during the claims examiner’s deposition, his affidavit had been revised in a series of emails between he and the client’s counsel. The City moved to compel the client to produce these email exchanges with counsel along with all other “documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for claims examiner in anticipation of his testimony as an expert,” or alternatively to strike claims examiner’s testimony.

The client claimed that the emails were protected by the attorney-client privilege. Included in its response was the affidavit of the client’s counsel, who stated that claims examiner serves as the “client’s liaison with defense counsel in this lawsuit” and that the emails the City seeks are “confidential communications . . . made in the course of rendition of legal services.”

The court of appeals held that the email exchanges and accompanying drafts of the claims examiner’s affidavit between claims examiner and counsel were attorney-client communications subject to the privilege notwithstanding claims examiner’s additional role as a testifying expert in the litigation.

The City’s mandamus petition argued that the court of appeals abused its discretion in setting aside the trial court’s orders because the discovery rules clearly require the production of documents furnished by or to a testifying expert, make no exception for when that expert is also a party or employee of a party to the litigation, and thus waive the attorney-client privilege in these circumstances.

The City argued that the trial court didn’t abuse its discretion in compelling the production of the emails and affidavit drafts in dispute because the claims examiner is a testifying expert to whom Rules 192.3(e)(6) and 194.2(f)(4)(A) apply. The City contended that these two discovery rules expressly authorize the production of all documents provided to the claims examiner in anticipation of his expert testimony.

The client said the expert-disclosure rules don’t override the attorney-client privilege and don’t require a party to choose between defending itself and maintaining its privileges.

In his opinion for the Texas Supreme Court Justice, John P. Devine said that the Court would not create a new exception to the privilege. Rather, it must determine whether the text of the discovery rules on which the City relied actually waives the attorney-client privilege when the client or its employee is a testifying expert witness.

Texas Rule of Civil Procedure 192.3 addresses the scope of discovery in Texas. Subsection (a) of the rule generally addresses the applicability of privileges, stating that “a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action.” However, subsection (e), which particularly addresses expert disclosures, provides: “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 [an] expert in anticipation of a testifying expert’s testimony.” To properly interpret these two provisions, Justice Devine said the court must “read them together to give meaning to both without rendering either meaningless.”

While subsection (e) provides that a party “may discover” testifying-expert materials, nothing in its language permits such discovery when the materials are attorney-client privileged. To the contrary, the Justice found that subsection (a) confirms that, absent some specific provision otherwise, Rule 192.3 does not require the disclosure of information that is attorney-client privileged. Because the rule does not specifically prohibit the use of the attorney-client privilege for testifying-expert materials, if material is privileged it may be withheld.

The City acknowledged that the email communications between claims examiner and the client’s attorney would be privileged had the client not designated the claims examiner as a testifying expert. Because Rule 192.3 doesn’t otherwise waive the attorney-client privilege to withhold testifying expert materials from discovery, the Court held that these attorney-client communications remain privileged under this rule.

While Rule 192.3 focuses on the scope of discovery generally, Texas Rule of Civil Procedure 194.2 addresses the permissible content of requests for disclosure. The rule provides:

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 the expert in anticipation of the expert’s testimony” so long as the expert is testifying and “is retained by, employed by, or otherwise subject to the control of the responding party.

The City argued this rule requires disclosure of otherwise privileged information when the opposing party is also a testifying expert. But Justice Devine found that the rule merely permits a party to request disclosure; it doesn’t require disclosure. Nowhere in Rule 194.2’s text does the words “require” or “must” appear. The rule’s language is permissive—not absolute, the justice said. As a result, nothing within the rule requires the client to turn over testifying expert materials. It merely allows the City to request them, subject to the other rules of discovery.

Further, Justice Devine said that two other provisions confirm that Rule 194.2 doesn’t require disclosure of testifying-expert materials that are also attorney-client privileged. Rule 194.3(b) provides that a response to a request for disclosure must disclose the requested information under Rule 194.2(f) “unless otherwise ordered by the court.” This provision indicates that the rules don’t require disclosure, allowing the trial court to limit or relieve any disclosure obligations under Rule 194.2. Second, the judge noted that the official comments to Rule 194 explain that a responding party may assert any privilege to a Rule 194.2 request except work product:

Disclosure is designed to afford parties basic discovery of specific categories of information, not automatically in every case, but upon request, without preparation of a lengthy inquiry, and without objection or assertion of work product. In those extremely rare cases when information ordinarily discoverable should be protected, such as when revealing a person’s residence might result in harm to the person, a party may move for protection. The comment to Rule 194.6 states…. A party may assert any applicable privileges other than work product using the procedures of Rule 193.3 applicable to other written discovery. Otherwise, to fail to respond fully to a request for disclosure would be an abuse of the discovery process.

As the official comment makes clear, Justice Devine found that requests for disclosure under Rule 194 are subject to the attorney-client privilege just like the provisions of Rule 192.

The justice went on to explain that Texas courts, when addressing the attorney-client privilege in the context of expert discovery, have “on balance” upheld the privilege. These decisions underscore the status of the attorney-client privilege as “quintessentially imperative” to our legal system. Without the privilege, Justice Devine submitted, attorneys wouldn’t be able to give their clients candid advice as is an attorney’s professional duty. An attorney’s candid advice and counseling is no less important when a client also testifies as an expert.

Because Texas discovery rules don’t operate to waive the attorney-client privilege whenever a client or its representative offers expert testimony, the Texas Supreme Court concluded that the court of appeals didn’t abuse its discretion in overruling the trial court’s order compelling disclosure. The petition for writ of mandamus was denied.