ATTORNEY-CLIENT PRIVILEGE NOT WAIVED WHEN CLIENT REPRESENTATIVE ALSO SERVES AS EXPERT WITNESS

March 1, 2019

The Supreme Court of Texas recently ruled that “While Texas’s expert discovery rules are broad, they remain subject to the attorney-client privilege, which is not waived merely by a client’s decision to offer expert testimony.” In In re City of Dickinson, 2019 WL 638555 (Tex. February 15, 2019), the corporate representative and senior claims examiner for the Texas Windstorm Insurance Association signed an affidavit providing both factual and expert testimony on behalf of Texas Windstorm. In response, the City of Dickinson argued that because the client representative served as an expert, under Texas discovery rules for experts it was entitled to discover all e-mails and other communications with him, including those between attorney and client about the client’s testimony. The trial court agreed and ordered the production. But the court of appeals disagreed, finding the attorney-client communications were protected and directed the trial court to vacate its order. This mandamus action to the Texas Supreme Court followed.

The Texas Supreme Court closely and methodically examined the discovery rules and applicable case law and agreed with the appellate court. In doing so they concluded:

“The City of Dickinson seeks to broaden the scope of expert discovery to include material that is otherwise protected by the attorney–client privilege. While Texas’s expert discovery rules are broad, they remain subject to the attorney–client privilege, which is not waived merely by a client’s decision to offer expert testimony. The court of appeals therefore did not abuse its discretion in vacating the trial court’s discovery orders, which failed to recognize the attorney–client privilege.”  

Accordingly, the petition for writ of mandamus seeking to overturn the appellate courts’ decision was denied.