Tag Archives: Privilege


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. Continue reading

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In Pennsylvania, a Party May be Required to Disclose Materials in the Claim File of its Third-Party Claims Administrator

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In Brown v. Greyhound Lines, Inc., 142 A.3d 1 (Pa. Super. May 24, 2016), the Superior Court of Pennsylvania addressed attorney-client privilege and work product claims associated with the ordered production of materials from a third-party administrator’s claim file. The court also discussed whether the video recording of a mock deposition of a defendant’s employee was discoverable as a recorded statement. With respect to the first issue, the court rejected the defendants’ wholesale claim of privilege related to any and all original investigation statements in the third-party administrator’s file. With respect to the ordered production of the mock deposition video, the court found that the video was discoverable pursuant to Pa. R.C.P. 4003.4. The Brown case serves as a reminder that a third-party claims administrator’s file materials may be discoverable and recorded statements by party witnesses, even if conducted by counsel in the form of an interview, may be discoverable if they are recorded by a third-party such as a court reporter or videographer.

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North Carolina Amends Its Expert Discovery Rule

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In July of 2015, the North Carolina legislature amended N.C. Rule of Civil Procedure 26(b)(4), which governs expert discovery. The new rule becomes effective October 1, 2015 and applies to actions commenced on or after that date.

Under the old rule, parties can obtain discovery related to trial experts by issuing expert interrogatories. Parties can also, upon motion, obtain additional discovery, such as deposition testimony and, with respect to such additional discovery, the court may require the party seeking discovery to pay a fair portion of the fees and expenses incurred by the opposing party in obtaining this additional discovery from its expert.

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