In re Tex. Windstorm Ins. Ass'n
549 S.W.3d 592
Tex. App.2016Background
- Texas Windstorm Insurance Association (TWIA) insured the City of Dickinson; dispute over windstorm damage from Hurricane Ike led to litigation.
- TWIA submitted a corporate-rep affidavit by Paul Strickland (a TWIA employee and liaison to defense counsel) in opposition to the City's summary-judgment motion; drafts and emails between Strickland and TWIA counsel were prepared.
- Fifty-five pages of those emails and affidavit drafts, which TWIA intended to tender in camera as privileged, were inadvertently e-filed as Exhibit 3‑A to TWIA's response.
- TWIA timely invoked the snap‑back provision of Tex. R. Civ. P. 193.3(d), filed a motion to withdraw Exhibit 3‑A, and sought sealing; the trial court initially sealed the record but later (Aug. 25, 2016) denied withdrawal and ordered production of documents provided to or reviewed by the testifying expert.
- TWIA filed a mandamus petition contending the emails/drafts are attorney‑client privileged, that it complied with the snap‑back rule, and that the trial court abused its discretion in ordering disclosure and denying withdrawal; this Court conditionally granted mandamus relief.
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (TWIA) | Held |
|---|---|---|---|
| Whether emails and affidavit drafts exchanged between counsel and Strickland are discoverable under Tex. R. Civ. P. 192.3(e)(6) / 194.2(f)(4) | Rule 192.3(e)(6) / 194.2(f)(4) require disclosure of all documents provided to or reviewed by a testifying expert, so emails/drafts are discoverable | The communications are attorney‑client communications with a client representative and thus protected by the attorney‑client privilege | Held: Attorney‑client privilege protects the emails/drafts; they are not subject to disclosure under the rules cited |
| Whether the attorney‑work‑product privilege shields the documents from discovery | Work‑product protects counsel communications and draft work | Work‑product does not apply to materials discoverable under rules 192.3 and 194.2(f)(4) | Held: Work‑product does not protect materials discoverable under the expert‑disclosure rules; court agreed with TWIA that attorney‑client privilege (not work‑product) was the controlling protection |
| Whether TWIA complied with the snap‑back procedure (Tex. R. Civ. P. 193.3(d)) and thus preserved privilege after inadvertent production | The City opposed return; therefore privilege was waived or procedurally forfeited | TWIA timely amended its response within ten days, requested return, and sought sealing—so it complied with the snap‑back rule and did not intend to waive privilege | Held: TWIA complied with rule 193.3(d); trial court abused its discretion in denying the snap‑back motion |
| Whether mandamus is appropriate (i.e., whether TWIA has an adequate appellate remedy) | An appeal could address any error after judgment | Disclosure of privileged materials causes irreparable harm not curable on appeal | Held: No adequate remedy by appeal; mandamus relief warranted to protect privileged documents |
Key Cases Cited
- In re Christus Santa Rosa Health Sys., 492 S.W.3d 276 (Tex. 2016) (privileged documents ordered produced lack adequate remedy by appeal)
- In re Mem'l Hermann Hosp. Sys., 464 S.W.3d 686 (Tex. 2015) (scope of discovery and burden to establish privilege)
- In re XL Specialty Ins. Co., 373 S.W.3d 46 (Tex. 2012) (importance of attorney‑client privilege and protection of confidential attorney‑client communications)
- In re Segner, 441 S.W.3d 409 (Tex. App.—Dallas 2013) (attorney‑client privilege protects communications to a client representative and is not displaced by rules 192.3/194.2)
- In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. App.—Corpus Christi 2007) (application and purpose of snap‑back rule for inadvertent disclosure)
- In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253 (Tex. 2005) (mandamus appropriate to protect confidential documents from discovery)