In re: City of Dickinson

Opinion by Justice Devine (linked here)

Rules 192.3 and 194.2 permit a party to request discovery of all materials that have been provided to, reviewed by, or prepared by or for an expert in anticipation of the expert’s testimony. If you have designated your own client or a client representative as an expert witness, does that mean you have to turn over documents provided to the client that would otherwise be protected by the attorney-client privilege? The Supreme Court of Texas says no.

The City of Dickinson sued Texas Windstorm, asserting a claim for property damage caused by Hurricane Ike. In response to the City’s summary judgment motion, Texas Windstorm submitted an affidavit from Paul Strickland, its corporate representative and senior claims examiner. The affidavit included both factual and expert opinion testimony. The City subsequently learned that Strickland’s affidavit had been revised in a series of emails between Strickland and Texas Windstorm’s counsel. Not surprisingly, the City wanted to see those emails, and the trial court ordered their production. Texas Windstorm sought mandamus relief, and the court of appeals held that the emails were privileged and that the trial court abused its discretion in ordering their production. The City then sought mandamus relief from the Texas Supreme Court.

Siding with Texas Windstorm and the court of appeals, the Supreme Court held the documents were privileged and protected from discovery. The Court noted that, although the discovery rules permit a party to request documents provided to the other side’s testifying expert, they do not necessarily require the other side to produce such documents. Any such request must be evaluated in light of the other discovery rules. In addition, the official comments to Rule 194 explain that, although a party cannot withhold such documents based on the work-product doctrine, it “may assert any [other] applicable privileges.” The Court also focused on the importance of the attorney-client privilege and noted that a “lawyer’s candid advice and counseling is no less important when a client also testifies as an expert.” It therefore held that the documents were privileged and the court of appeals did not abuse its discretion in vacating the trial court’s discovery orders.