in Re: Milo H. Segner, Jr., as Trustee of the PR Liquidating Trust, 441 S.W.3d 409

Background

Relator Milo H. Segner, Jr., trustee of the PR Liquidating Trust (successor in bankruptcy), sued Sovereign Bank; Sovereign sought documents from Mitchell Carter via subpoena duces tecum and deposition.
Carter was retained by the trustee to assist in trust administration, supervised trust employees, attended mediations, was a signatory on accounts, and received/communicated with the trust’s lawyers.
Relator designated Carter as a testifying expert and produced Carter’s expert report and an 1,800+ page expert work file.
The Bank moved to compel a broader set of documents (including communications between Carter and the trustee or counsel and other trust-related materials) beyond the expert-disclosure materials.
The trial court granted the Bank’s motion in part; relator petitioned for mandamus, arguing attorney-client privilege and that Rule 195 discovery limits apply to testifying experts.
The Court of Appeals held the trial court abused its discretion by compelling privileged attorney-client communications and conditionally granted mandamus, ordering the trial court to vacate its order and deny the motion to compel.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of discoverable materials from a designated testifying expert	Segner: only materials required by expert-disclosure rules (reports, materials provided to/reviewed/prepared for expert) excluding privileged attorney-client communications	Bank: expert discovery rule requires production of all materials provided to/reviewed by/prepared for the expert, regardless of privilege	Held: Rule 192.3(e) does not override attorney-client privilege; privileged communications need not be produced
Whether Carter is a “representative of the client” for privilege purposes	Segner: Carter had authority to obtain legal advice and act on trustee’s behalf; he received confidential communications from counsel, so he is a representative of the client	Bank: Carter worked for an accounting firm and was not an employee of the trustee; therefore not entitled to privilege as a client representative	Held: Carter qualifies as a client representative under Rule 503(a)(2), so communications for legal representation are protected
Proper discovery procedure for a designated testifying expert	Segner: discovery is governed by Rules 192.3(e), 194.2(f), and 195 (not Rule 199.2), limiting tools and preserving privilege	Bank: used Rule 199.2 subpoena and argued broader production is allowed; urged Christus Spohn’s broad discovery rationale	Held: Because Carter was a designated testifying expert, the Bank’s remedy was limited to Rule 195 procedures; Rule 199.2 subpoena cannot expand discovery beyond expert rules
Balancing expert-disclosure interests vs. attorney-client confidentiality	Segner: confidentiality of legal communications outweighs broader expert discovery; allowing full disclosure would chill attorney-client communications	Bank: expert’s influence justifies broad discovery, citing Christus Spohn	Held: Christus Spohn does not eliminate attorney-client privilege; courts must balance discovery needs against preserving confidential legal communications; here privilege controls

Key Cases Cited

In re Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) (mandamus standard: abuse of discretion and no adequate appellate remedy)
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standards for mandamus review)
In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. 2007) (materials provided to/reviewed by or prepared for a testifying expert are generally discoverable)
Republic Ins. Co. v. Davis, 856 S.W.2d 158 (Tex. 1993) (discussion of waiver of attorney-client privilege by offensive use)
In re XL Specialty Ins. Co., 373 S.W.3d 46 (Tex. 2012) (requiring production of communications not covered by attorney-client privilege)
Ray Malooly Trust v. Juhl, 186 S.W.3d 568 (Tex. 2006) (trust is not a separate legal entity; trustee is party to suit)