Texas Supreme Court Upholds Attorney-Client Privilege Regarding A Client’s Expert Testimony

The Supreme Court of Texas held in In re City of Dickinson that the attorney-client privilege is not waived for clients who offer expert testimony in their own case. The Court’s holding emphasized the importance of the attorney-client privilege and its role in the legal system.

The dispute arose when Texas Windstorm Insurance Association, the Defendant, offered an affidavit from its corporate representative that included both factual and expert opinions on the Defendant’s behalf. The Plaintiff, the City of Dickinson, contended that the email communications between the attorney and his client about the client’s expert testimony were discoverable because the City, as the client’s opposing party, was entitled to discover “all documents . . . provided to, reviewed by, or prepared by or for [an] expert in anticipation of a testifying expert’s testimony” under Texas Rule of Civil Procedure 192.3(e)(6). The trial court agreed with the City and ordered Texas Windstorm to produce the emails, which prompted Texas Windstorm to seek mandamus relief.

In making its decision, the Texas Supreme Court focused on whether Texas law required a party to disclose material that would otherwise be considered privileged. The Court looked to Texas Rule of Civil Procedure 194.2 rather than Rule 192.3, because Rule 194.2 discusses the permissible content of requests for disclosure. The Rule states in relevant part that “[a] party may request disclosure of . . . all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony” so long as the expert is testifying and “is retained by, employed by, or otherwise subject to the control of the responding party.” The Court held that although a party may be permitted to request such disclosures under Rule 194.2, the Rule does not mandate a party to make such disclosures.

The Court then looked to two other provisions within the Texas Rules of Civil Procedure to confirm that Rule 194.2 does not require disclosure of privileged material. The Court first looked to Rule 194.3 which provides that information under Rule 194.2(f) (expert witness testimony) must be disclosed by a request for disclosure “unless otherwise ordered by the court.” The Court stated that this language indicates the Rules do not require disclosure, but allow the trial court to limit or relieve any parties’ disclosure obligations under Rule 194.2.

The second provision the Court’s opinion discussed was the official comments to Rule 194 which explain that a responding party may assert any privilege to a Rule 194.2 request, with the exception of work product. The commentary states in relevant part that “[a] party may assert any applicable privileges other than work product using the procedures of Rule 193.3 applicable to other written discovery.” The Court concluded that the comment is clear that the Rules do not mandate disclosure of privileged material, and a party may assert such privilege when applicable, as it was in the case before the Court.

The Court cited several instances where Texas courts have overwhelmingly upheld the attorney-client privilege and noted its importance in promoting an attorney’s duty to provide candid legal advice. The Court’s holding confirms that Texas courts will uphold the attorney-client privilege at any instance when the Rules permit it to do so.

[1] In re City of Dickinson, No. 17-0020, 2019 WL 638555 (Tex. 2019).