The Texas Supreme Court in in re City of Dickinson recently answered that question in the negative and held that attorney-client communications remained privileged and undiscoverable even if the client is designated as a testifying expert.
In re City of Dickinson involved a dispute between the City of Dickinson and the Texas Windstorm Insurance Association (“TWIA”). The city argued that TWIA had failed to pay for property damage related to Hurricane Ike. The city moved for summary judgment on causation. In response, TWIA submitted an affidavit of its corporate representative who provided both factual and expert testimony. During a deposition, the city learned that the affidavit had been revised several times. The city sought production of the drafts and related correspondence, arguing that it was entitled to that information as part of expert discovery. TWIA argued that the emails were privileged.
The district court compelled production of the emails. The court of appeals concluded that the emails were privileged. The Texas Supreme Court agreed that the emails were privileged.
The court reasoned that Texas Rule of Civil Procedure 192.3(e), pertaining to scope of discovery relating to experts, stated that a party “may” obtain the materials listed in that rule, but that “Rule 192.3 does not require the disclosure of information that is attorney-client privileged.” Likewise, the court found that Rule 194, which specifically addresses expert discovery, “merely permits a party to request disclosure, it does not require it.” In short, the court found nothing in the discovery rules that would trump the attorney-client privilege. Therefore, while normally emails exchanged between a testifying expert and attorney are discoverable, in cases where the testifying expert is also a client, so long as the emails are attorney-client privileged, they are not discoverable.
In re City of Dickinson provides significant protection for communications made between an attorney and client in cases where the client is also serving as testifying expert.
