The Texas Supreme Court held that the attorney-client communication privilege is not waived when the client or the client’s employee is designated as a testifying expert. In re City of Dickinson, 568 S.W.3d 642 (Tex. 2019).
The insurer designated its senior claims examiner as an expert witness in a coverage dispute with a municipality. The city sought to compel discovery of all of his communications with the insurer’s counsel, arguing that the attorney-client communications about the client’s expert testimony were discoverable because the municipality was entitled to discovery of documents related to a testifying expert’s testimony. The insurer contended that its counsel’s e-mails with the claims adjuster were protected by the attorney-client communication privilege. The trial court ordered production, but the appellate court vacated that order holding that the e-mails were protected by the attorney-client communication privilege.
The Texas Supreme Court held that Texas’ expert discovery rules are subject to the attorney-client privilege, and that the privilege is not waived by a client or the client’s employee offering expert testimony in its own case.