Privileged Communications With a Testifying Client/Expert

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In In re City of Dickinson, 568 S.W.3d 642 (Tex. 2019), the Supreme Court of Texas recently assessed whether a client’s emails with its counsel were subject to disclosure after the client was designated as a testifying expert witness. In re City of Dickinson involved a coverage dispute between a policyholder and its insurer. The policyholder moved for summary judgment on the issue of causation, essentially alleging that its insurer did not pay all damages caused by Hurricane Ike. In responding to the motion, the insurer relied upon an affidavit by one of its employees, a claims examiner, that included both factual testimony and expert witness testimony.

The policyholder subsequently filed a motion to compel, seeking the production of emails between the claims examiner and the insurer’s counsel that were generated while the affidavit was being drafted. The emails contained numerous revisions of the affidavit. The insurer objected, asserting that the emails were protected by the attorney-client privilege and were generated in the course of the rendition of legal services.

The trial court granted the motion to compel, ordering production. Ultimately, after a series of appeals, the Supreme Court had to decide whether the documents in dispute were subject to discovery. In resolving this issue, the court examined the rules pertaining to expert disclosures. As noted by the court, the rules authorize the production of all documents provided to a testifying expert witness. Thus, the court was faced with determining if its rules required the disclosure of documents that are also subject to the attorney-client privilege.

The court, declining the opportunity to create a new exception, acknowledged that there are exceptions to the attorney-client privilege but found that none of the recognized exceptions applied. Instead, the court focused on the rules that govern the scope of discovery and the applicability of privileges.

In examining the rule governing expert disclosures, the court focused on the fact that the rule was permissive in nature, highlighting the word “may.” The court explained that the rule allows a party to request that an opposing party disclose materials, but does not require such disclosure. Additionally, the court noted that the rule governing expert disclosures does not address the disclosure of such materials that are otherwise protected by the attorney-client privilege. Thus, the court held that the general protections afforded by the privilege remained in effect.

The court made it clear that, in the context of expert disclosures, there is a significant distinction between information that is protected by the work product doctrine as opposed to information protected by the attorney-client privilege. The court noted that the rule governing the disclosure of expert materials explicitly states that work product is discoverable, but does not address materials subject to the attorney-client privilege. After examining numerous judicial decisions where courts upheld the attorney-client privilege in the context of expert disclosures, the In re City of Dickinson court, noting that the attorney-client privilege is “quintessentially imperative,” upheld the appellate court’s decision overruling the trial court’s order compelling disclosure.

The In re City of Dickinson case reminds us that, while not absolute, the attorney-client privilege provides powerful protections and can be asserted in situations when the materials sought are otherwise subject to disclosure. The case also exemplifies the importance of performing a critical analysis of the applicable rules to ensure compliance with the law, while maximizing a party’s position. Accordingly, it is a major benefit to involve counsel early in the case.

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