Texas Supreme Court holds attorney-client privilege applies even when client acts as its own expert

 

In Re: City of Dickinson, 17-0020 (Tex. February 15, 2019)

This is a mandamus action of primary interest to litigators where the Texas Supreme Court held the attorney/client privilege protects expert testimony when the client is also the expert.

The City of Dickinson purchased a commercial windstorm policy from Texas Windstorm Insurance Association. In the underlying litigation, the City alleges that Texas Windstorm has not paid all it owes under the policy and sued. In the motion for summary judgment Texas Windstorm included the affidavit of its corporate representative and senior claims examiner, Paul Strickland. Strickland’s affidavit provided both factual and expert opinion testimony on Texas Windstorm’s behalf. Strickland’s affidavit had been revised in a series of emails between Strickland and Texas Windstorm’s counsel and the City sought the drafts in discovery. Texas Windstorm asserted the communications were privileged while the City asserted, as a testifying expert, the communications were not privileged. The trial court ordered Windstorm to produce the communications. The court of appeals conditionally granted a writ of mandamus. The Texas Supreme Court heard the mandamus filed by the City.

Texas Windstorm responds that the expert-disclosure rules do not override the attorney–client privilege and do not require a party to choose between defending itself and maintaining its privileges. It asserted the attorney–client privilege is substantively distinct from the work-product doctrine.  There was no dispute the communications at issue were encompassed within the attorney/client privilege.  The Court declined to create any new privileges in the opinion and confined its analysis to the rules of discovery already in place. Because the discovery rules are part of a cohesive whole, the Court considered them in context rather than as isolated provisions.  While Texas Rule of Civil Procedure 192.3 states a party may discover expert information, it does not expressly permit discovery when the information is protected by the attorney/client privilege. In fact, Rule 192.3(a) expressly contains the phrase “absent some specific provision otherwise” which the Court interpreted to include the attorney/client privilege.  Further, Rule 194.2 permits a party to seek a disclosure on expert information, but such is permissive, not mandatory and is subject to privileged communications. Additionally, the official comments to Rule 194 explain that a responding party may assert any privilege to a Rule 194.2 request except work product. The City’s supporting cases were largely based in the work-product privilege, not the attorney/client privilege. As a result, they are inapplicable. The Court reemphasized some of its more recent opinions holding the attorney/client privilege is a “quintessentially imperative” to our legal system. A lawyer’s candid advice and counseling is no less important when a client also testifies as an expert. As a result, it upheld the mandamus and allowed Texas Windstorm to withhold the communications.

If you would like to read this opinion click here. Justice Devine delivered the opinion of the Court. The docket page with attorney information is found here.