in Re City of Dickinson, 568 S.W.3d 642

Background

City of Dickinson sued Texas Windstorm Insurance Association over unpaid windstorm insurance claims from Hurricane Ike; Texas Windstorm defended and filed an affidavit from its corporate representative and senior claims examiner, Paul Strickland, containing factual and expert-opinion testimony.
The City learned at Strickland’s deposition that Strickland’s affidavit had been revised in a series of emails exchanged with Texas Windstorm’s counsel and moved to compel production of those emails and all materials provided to or reviewed by Strickland in anticipation of his expert testimony.
Texas Windstorm asserted the attorney–client privilege for the emails, filed an affidavit from counsel so stating, and inadvertently e-filed the privileged emails, then invoked Rule 193.3(d) to demand their return (the “snap-back” provision).
The trial court denied snap-back and ordered production of the emails and draft affidavits; Texas Windstorm sought mandamus relief in the court of appeals, which granted relief and ordered the trial court’s orders vacated.
The City petitioned this Court arguing the expert-discovery rules require disclosure of materials provided to a testifying expert even when those materials are attorney–client communications; Texas Windstorm argued the rules do not waive the attorney–client privilege and snap-back applied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether expert-discovery rules waive attorney–client privilege when the client or its employee testifies as an expert	Expert-discovery rules (Tex. R. Civ. P. 192.3(e)(6), 194.2(f)(4)(A)) require production of all materials provided to or reviewed by a testifying expert, with no exception for party/employee-experts	Rules do not override attorney–client privilege; a party should not have to waive privilege to use its own or its employee’s expertise; Rule comments permit asserting privileges other than work product	The discovery rules do not waive the attorney–client privilege for client/employee testifying experts; privileged attorney–client communications remain protected
Whether Rule 194.2 compels production (vs. permits requests)	Rule 194.2’s language and patterning after pre-2010 federal rule means disclosure is required	Rule 194.2 is permissive (“may request”); responses remain subject to other privileges and court orders	Rule 194.2 permits requests but does not mandate disclosure; privileges (other than work product) may be asserted
Whether prior decision in Christus Spohn requires disclosure here	Christus Spohn required disclosure of an internal report provided to a testifying expert	Christus Spohn involved work product, not attorney–client communications; Rule 192.5(c)(1) treats work product differently	Christus Spohn is distinguishable; it addressed waiver of work-product protection, not attorney–client privilege
Whether Rule 193.3(d) snap-back applied to inadvertently produced emails	Expert-discovery rules override snap-back; materials produced cannot be clawed back	Snap-back applies only if the material is privileged; Texas Windstorm timely invoked Rule 193.3(d) and identified the emails as privileged	Snap-back applied: because the emails were attorney–client privileged and Texas Windstorm complied with Rule 193.3(d), the trial court abused its discretion in denying return of the inadvertently produced emails

Key Cases Cited

In re Tex. Windstorm Ins. Ass’n, 549 S.W.3d 592 (Tex. App.—Houston [14th Dist.]) (court of appeals ordered trial court to vacate order compelling production of attorney–client emails)
In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex.) (distinguished; held work-product report provided to testifying expert was discoverable under Rule 192.3(e)(6))
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex.) (mandamus vacatur standard: appellate court abuses discretion when no basis in law or reason supports trial court order)
Paxton v. City of Dallas, 509 S.W.3d 247 (Tex.) (describing the central importance of the attorney–client privilege)
In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794 (Tex.) (privilege promotes candid attorney–client communications and effective administration of justice)
In re Segner, 441 S.W.3d 409 (Tex. App.—Dallas) (recognizing that current rules continue to protect attorney–client communications from discovery)
In re State Farm Mut. Ins. Co., 100 S.W.3d 338 (Tex. App.—San Antonio) (employee designated as expert did not waive attorney–client privilege)
Aetna Cas. & Sur. Co. v. Blackmon, 810 S.W.2d 438 (Tex. App.—Corpus Christi) (discussing waiver implications when an employee testifies as expert)