November 7, 2019 | By Matthew Kellogg
The October issue of the Dallas Bar Association’s Headnotes newspaper included an article by McCathern partner Ty Sheaks entitled “Scope of Protections Afforded When Designating a Client an Expert”. In the article, Ty discusses the practical implications of the Texas Supreme Court’s recent ruling In re City of Dickinson on using attorney-client and work-product privileges when designating a client as an expert in litigation. The article was printed on page 6 of the issue (viewable here) and its text is presented below:
Scope of Protections Afforded When Designating a Client an Expert
By Ty M. Sheaks
Headnotes – October 2019
When the client testifies as an expert witness, are the protections afforded by the attorney-client privilege waived? More practically, do the discovery rules authorizing production of “all documents…provided to, reviewed by, or prepared by or for [an] expert in anticipation of a testifying expert’s testimony” trump assertions of attorney-client privilege or work product doctrine?
Most practitioners have faced this conundrum when determining whether to designate a client as an expert in litigation. In re City of Dickinson is a must-read for any practitioner facing this decision, as the Texas Supreme Court recently affirmed the applicability of the attorney-client privilege in this context.
In Dickinson, the underlying litigation arose between the city and its commercial windstorm insurer for property damage caused by Hurricane Ike. In defense to a summary judgment motion filed by the city, the insurer included an affidavit from its corporate representative that contained both factual and expert opinions. At the representative’s deposition, the city learned that the affidavit had been revised through a series of e-mails with counsel. The city moved to compel production of the e-mail exchanges along with all other “documents, tangible things, reports…” reviewed or prepared by or for the representative under Rules 192.3(e)(6) and 194.2(f).
The trial court granted the city’s motion and ordered production of the e-mails and accompanying drafts. The Court of Appeals overruled, concluding the e-mail exchanges and accompanying drafts of the affidavit were attorney-client privileged communications. The city filed a mandamus petition asserting that the appeals court abused its discretion because discovery rules clearly require production of documents in this context and argued there is no exception for when an expert is also party or employee of a party to the litigation.
At the issue before the Dickinson court was whether a client, when testifying as an expert witness in the client’s own case, waives the attorney-client privilege with respect to the client’s testimony. In its analysis, the court noted that Rules 192.3(e)(6) and 194.2(f)(4) contain identical language allowing for discovery or disclosure of “all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s testimony.”
However, the court determined Rule 192.3(e) only provides that a party “may discover” testifying-expert materials and subsection (a) contradicts and confirms that, absent some specific provision otherwise, Rule 192.3 does not require disclosure of information that is attorney-client privileged. Similarly, the court found Rule 194.2 merely permits a party to request disclosure; it does not require disclosure as the words “require” or “must” do not appear in the text of the Rule. In support of its analysis, the court noted that official comments to the Rules make clear that requests for disclosure under Rule 194 are subject to the attorney-client privilege just like under the provisions of Rule 192.
Additionally, the court looked to prior lower court decisions addressing the attorney-client privilege in the context of expert discovery and noted those decisions, on balance, upheld the privilege. Specifically, the court noted those prior decisions underscored the status of the attorney-client privilege as “quintessentially imperative” to our legal system because without it, attorneys would not be able to give candid advice to clients.
Finally, the Dickinson court distinguished its prior decision in In re Christus Spohn Hosp. Kleberg, which, the city argued, would require disclosure of the e-mail communications at issue. In Christus Spohn, the court required a hospital to turn over a report prepared by an internal investigator and furnished to the hospital’s testifying expert. The Dickinson court noted that decision was not controlling here since the internal investigative report was not attorney-client communications but work product.
Ultimately, the Dickinson court held that, while Texas’ expert discovery rules are broad, they remain subject to the attorney-client privilege, which is not waived when the client is designated as an expert.
The bottom line for practitioners who are considering designating a client (or client representative or employee) as an expert is that they should be aware of the protections afforded by the attorney-client privilege, as well as the potential pitfalls of relying on the work product doctrine.