IN RE CITY OF DICKINSON, RELATOR
No. 17-0020
IN THE SUPREME COURT OF TEXAS
Argued September 12, 2018; Opinion Delivered: February 15, 2019
JUSTICE DEVINE delivered the opinion of the Court.
The issue in this original proceeding is whether a client, who testifies as an expert witness in the client‘s own case, waives the attorney-client privilege with respect to the client‘s expert testimony. Relator, the City of Dickinson, contends that email communications in the underlying litigation between attorney and client about the client‘s expert testimony are discoverable because the City, as the client‘s opposing party, is entitled to discover “all documents . . . provided to, reviewed by, or prepared by or for [an] expert in anticipation of a testifying expert‘s testimony.” See
The court of appeals concluded that these attorney-client communications were protected from disclosure and accordingly directed the trial court to vacate its order compelling their production. In re Tex. Windstorm Ins. Ass‘n, 549 S.W.3d 592, 596-98 (Tex. App.—Houston [14th Dist.], orig. proceeding). The mandamus petition here asserts again that the discovery rules waive the attorney-client privilege under these circumstances and asks us to vacate the court of appeals‘s judgment as an abuse of discretion. Because the court of appeals did not abuse its discretion, we deny the requested relief.
I
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 for property damage caused by Hurricane Ike. The dispute here arises from a motion for summary judgment filed by the City on the issue of causation. In responding to the City‘s motion, 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.
The City subsequently learned during Strickland‘s deposition that his affidavit had been revised in a series of emails between Strickland and Texas Windstorm‘s counsel. This revelation prompted the City to move to compel Texas Windstorm to produce these email exchanges with counsel along with all other “documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for Strickland in anticipation of his testimony as an expert,” or alternatively to strike Strickland‘s testimony.
Texas Windstorm responded that the emails were protected by the attorney-client privilege. Included in the response was the affidavit of Texas Windstorm‘s counsel, James R. Old, Jr., who stated that Strickland serves as the “client‘s liaison with defense counsel in this lawsuit” and that
The trial court denied Texas Windstorm‘s motion to withdraw the email communications that it had accidentally filed and granted the City‘s motion to compel. Specifically, the trial court required Texas Windstorm to produce “all documents, tangible things, reports, models, and data compilations that have been provided to, reviewed by, or prepared by or for Paul Strickland in anticipation of his testimony as an expert, including all e-mails and drafts he exchanged with [Texas Windstorm‘s] counsel to prepare his Affidavit.” Rather than comply with the court‘s order, Texas Windstorm sought mandamus relief in the court of appeals.
The court of appeals conditionally granted Texas Windstorm‘s mandamus petition, holding that the trial court‘s orders compelling production and denying snap-back were an abuse of discretion and directed both orders to be set aside. 549 S.W.3d at 600. The court concluded that the email exchanges and accompanying drafts of Strickland‘s affidavit between Strickland and counsel were attorney-client communications subject to the privilege notwithstanding Strickland‘s additional role as a testifying expert in the litigation. Id. at 598.
The City‘s mandamus petition in this Court complains that the court of appeals abused its discretion in setting aside the trial court‘s orders because our discovery rules clearly require the production of documents furnished by or to a testifying expert, make no exception for when that
II
The City argues that the trial court did not abuse its discretion in compelling the production of the emails and affidavit drafts in dispute because Strickland is a testifying expert to whom Rules
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. Although a comment to Rule 194 contemplates the waiver of the work-product privilege in this situation, the comment states further that other applicable privileges may be asserted.
The International Association of Defense Counsel and the Association of Corporate Counsel, as amici curiae, have filed a brief in support of Texas Windstorm. They submit that the attorney-client privilege is substantively distinct from the work-product doctrine and deserving of more jealous protection.
We will not create a new exception to the privilege here. Rather, we must determine whether the text of the discovery rules on which the City relies actually waives the attorney-client privilege when the client or its employee is a testifying expert witness. We interpret our rules using the same principles we apply when construing statutes. In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 437 (Tex. 2007) (orig. proceeding). Our review is de novo, and our primary objective is to give effect to the drafter‘s intent as expressed in the rule‘s language. Galbraith Eng‘g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). But because our discovery rules are part of a cohesive whole, we must also consider them in context rather than as isolated provisions. TGS-NOPC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). We thus begin our analysis with the rule‘s words and their apparent meaning within this context. In re Lee, 411 S.W.3d 445, 451 (Tex. 2013).
While subsection (e) provides that a party “may discover” testifying-expert materials, nothing in its language permits such discovery when the materials are attorney-client privileged. See
Here, the City concedes that the email communications between Strickland and Texas Windstorm‘s attorney would be privileged had Texas Windstorm not designated Strickland as a testifying expert. Because Rule 192.3 does not otherwise waive the attorney-client privilege to
While Rule 192.3 focuses on the scope of discovery generally,
Two other provisions confirm that Rule 194.2 does not require disclosure of testifying-expert materials that are also attorney-client privileged. First, Rule 194.3(b) provides that a response to a request for disclosure must disclose the requested information under Rule 194.2(f) “unless otherwise ordered by the court.”
Second, the official comments to Rule 194 explain that a responding party may assert any privilege to a Rule 194.2 request except work product:
Disclosure is designed to afford parties basic discovery of specific categories of information, not automatically in every case, but upon request, without preparation of a lengthy inquiry, and without objection or assertion of work product. In those extremely rare cases when information ordinarily discoverable should be protected, such as when revealing a person‘s residence might result in harm to the person, a party may move for protection. A party may assert any applicable privileges other than work product using the procedures of Rule 193.3 applicable to other written discovery. Otherwise, to fail to respond fully to a request for disclosure would be an abuse of the discovery process.
The City argues, however, that our expert-discovery rules are patterned after the pre-2010 federal rules and should be similarity interpreted. While the current federal rules would not allow disclosure of these emails,
Although our current discovery rules are generally modeled after the pre-2010 federal rules, the analogous advisory committee note to the former federal rule states, “[g]iven this obligation of disclosure, litigants should no longer be able to argue that materials furnished to experts to be used in forming their opinions—whether or not ultimately relied upon by the expert—are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.”
The City further argues that our holding in Christus Spohn requires the disclosure of these email communications between Strickland and Texas Windstorm‘s attorney. See In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. 2007) (orig. proceeding). In Christus Spohn, we required a hospital to turn over a report prepared by an internal investigator and furnished to the hospital‘s testifying expert. Id. at 436. Even though the expert testified that she merely “glanced” at the report, we found the report discoverable under Rule 192.3(e)(6) because it was “provided to” the expert. Id. at 438. Additionally, we found that the hospital waived the work-product privilege when it provided the report to its testifying expert because Rule 192.5(c)(1) specifically excludes information discoverable under Rule 192.3 from the definition of work product. Id.
Our decision in Christus Spohn, however, is not controlling here. The internal investigative report in Christus Spohn was work product, not attorney-client communications. Id. (“[T]he hospital claims and Palmer does not dispute, that the [report] constitute[s] work product.“). Unlike work product, which is expressly discoverable under Rule 192.5(c)(1), the rules do not mention the discovery of attorney-client communications. See
These decisions underscore the status of the attorney-client privilege as “quintessentially imperative” to our legal system. Paxton v. City of Dallas, 509 S.W.3d 247, 261 (Tex. 2017). Without the privilege, attorneys would not be able to give their clients candid advice as is an attorney‘s professional duty.
IV
Finally, the City complains that the court of appeals abused its discretion in requiring the return of the emails that Texas Windstorm inadvertently produced, arguing that the expert-disclosure rules prevail over the snap-back rule. Rule 193.3(d) provides a party who has inadvertently produced privileged material a means to preserve the privilege.
Texas Windstorm complied with the rule. Its attorneys contacted the City‘s counsel the day after Texas Windstorm responded to the discovery request. Later that day, Texas Windstorm sent a letter “pursuant to Texas Rule of Civil Procedure 193.3(d)” officially requesting the City to destroy the inadvertently filed emails. In this letter, Texas Windstorm specifically described the exhibit that contained the emails and asserted that the emails were protected by the attorney-client privilege. It then filed an emergency motion with the trial court that same day asserting that the emails were privileged communications.
***
The City of Dickinson seeks to broaden the scope of expert discovery to include material that is otherwise protected by the attorney-client privilege. While Texas‘s expert discovery rules are broad, they remain subject to the attorney-client privilege, which is not waived merely by a client‘s decision to offer expert testimony. The court of appeals therefore did not abuse its discretion in vacating the trial court‘s discovery orders, which failed to recognize the attorney-client privilege.
The petition for writ of mandamus is denied.
John P. Devine
Justice
Opinion Delivered: February 15, 2019