Over a decade ago, the Texas Supreme Court held that any document provided to a testifying expert in anticipation of her testimony must be disclosed to the other side, regardless of whether the expert relied on the document. In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 438 (Tex. 2007). That means every document provided to a testifying expert – even if it is a document that otherwise would be protected from disclosure as attorney work product. Id. Indeed, even when a party mistakenly provides privileged work product to a testifying expert, realizes the mistake, and then timely “snaps it back,” the document has lost its privilege and still must be disclosed. Id. at 440-41.
But what if the testifying expert is also your client? Are attorney-client privileged communications between counsel and the client required to be disclosed when the client is also wearing an expert hat? Earlier this year, the Texas Supreme Court said no. In re City of Dickinson, 568 S.W.3d 642, 649 (Tex. 2019).
Dickinson involved a windstorm policy coverage dispute between the City of Dickinson (the “City”) and the Texas Windstorm Insurance Association (“TWIA”). In responding to the City’s summary judgment motion, TWIA submitted an affidavit of its senior claims adjuster, which provided both factual and expert opinion testimony. The adjuster was deposed, during which the City learned that TWIA’s counsel and the adjuster had revised the affidavit in a series of e-mails. The City moved to compel the e-mails. Relying heavily on Christus, the City argued that TWIA had waived the attorney-client privilege protecting those e-mails from disclosure because the adjuster was not just a client representative, but also a testifying expert. The trial court granted the City’s motion, compelling production of the e-mails TWIA withheld as privileged. The Texas Supreme Court reversed, describing the “status of the attorney-client privilege as ‘quintessentially imperative’ to our legal system” and finding that, unlike the privileged work product in Christus, nothing in the rules required disclosure of counsel’s communications with a client representative who was acting as an expert. Id. at 647-49.
Dickinson, however, still leaves an unanswered question because of the breadth of attorney-client privilege in Texas. The Texas attorney-client privilege is not limited to communications between an attorney and a client or client representative. Tex. R. Evid. 503. For example, communications among non-lawyer client representatives only, which are made to “facilitate the rendition of professional legal services,” also are protected. In other words, an attorney need not be directly involved in a communication for it to be privileged. But Dickinson only addressed communications to or from an attorney and thus it is unclear whether the courts in Texas will take a similar position on communications that do not involve an attorney. In order to ensure proper protection of communications with a client representative who also is serving as a testifying expert, the communications should be through an attorney. In addition, if the client representative who is serving as an expert is going to issue an affidavit or a report, counsel should consider agreeing up front with opposing counsel that neither party will be required to disclose drafts of such documents or communications between experts and counsel.
Pursuant to Tex. R. Civ. P. 193.3(d), a party that inadvertently produces privileged material can avoid waiving the privilege by timely informing the receiving party of the privilege asserted.