In re Christus Spohn Hosp. Kleberg

Decision Date27 April 2007
Docket NumberNo. 04-0914.,04-0914.
Citation222 S.W.3d 434
PartiesIn re CHRISTUS SPOHN HOSPITAL KLEBERG, Christus Spohn Health System Corporation d/b/a Christus Spohn Hospital Kleberg, Relator.
CourtTexas Supreme Court

F. Edward Barker, Stephen Jeffrey Chapman, Barker Leon Fancher & Matthys, L.L.P., and Deborah R. Sundermann, Corpus Christi, for Relator.

Geary Todd Taylor, John Michael Johanson and Chris M. Volf, Johanson & Fairless, LLP, Sugar Land, for Real Party In Interest.

Justice O'NEILL delivered the opinion of the Court.

In this medical malpractice mandamus proceeding, the defendant hospital seeks to recover privileged documents that were mistakenly provided to its designated testifying expert witness. We must decide whether Texas Rule of Civil Procedure 193.3(d), known as the "snap-back" provision, preserves the privilege over Rule 192.3(e)(6)'s mandate that all documents provided to a testifying expert are discoverable. We hold that the inadvertent nature of the production in this case preserved the privilege under Rule 193.3(d) and entitled the hospital to recover the documents upon realizing its mistake, provided the hospital's designated expert does not testify at trial. The hospital has not attempted to name another testifying expert, instead indicating an intent to rely upon the expert to whom the documents were disclosed. So long as the hospital stands upon its testifying expert designation, Rule 192's plain language and purpose and the policy considerations that surrounded its amendment compel the conclusion that the documents may not be snapped back. Accordingly, we deny the hospital's petition for writ of mandamus without prejudice to any right the hospital might have to designate another testifying expert and recover the privileged documents.

I. Background

When Mona Palmer notified Christus Spohn Hospital Kleberg of her intent to file a health care liability claim arising out of her daughter Brandi Lee Palmer's death, the Hospital's internal investigator, Sandra Northcutt, conducted an investigation. That investigation generated a number of documents, labeled "CONFIDENTIAL COMMUNICATION PREPARED IN ANTICIPATION OF LITIGATION," which form the basis of this mandamus action. The Northcutt documents include Northcutt's memoranda summarizing her interviews with Hospital employees and her correspondence to and from Hospital counsel. A paralegal newly employed by the Hospital's counsel sent the Northcutt documents to the Hospital's only expert witness on standard-of-care issues, Nurse Kendra Menzies. According to the Hospital's counsel, the paralegal had recently moved to Texas from California, where she understood that all materials forwarded to an expert witness remained confidential. She assumed the same rule applied in Texas.

Menzies' expert report on Brandi Lee Palmer listed the documents she reviewed in forming her opinion; the Northcutt documents do not appear on that list. Plaintiff's counsel sought to depose Menzies, and issued a subpoena duces tecum requesting all documents furnished to and reviewed by Menzies in connection with her consultation in the lawsuit. Among the materials Menzies brought to the deposition were the Northcutt documents. This was the first time that the Hospital's and Palmer's counsel learned the privileged documents had been forwarded to Menzies. When questioned about the documents that had been transmitted to her, Menzies testified, "I didn't read every bit. But, yes, I glanced through everything in the box."

The Hospital filed an "Objection, Assertion of Privilege, and Motion to Return Privileged Documents" pursuant to Rule 193.3(d) of the Texas Rules of Civil Procedure, known as the "snapback" provision, seeking to recover the documents mistakenly produced to Menzies. At the hearing on this issue, Menzies testified by affidavit that she did not read the documents but rather "glanced" at them "merely to identify what they were," and upon determining that they were not relevant to her needs, "tossed them back in the box." The trial court overruled the Hospital's claim of privilege, stating it was "unclear that [Menzies] did not see certain specified documents." The court of appeals denied the Hospital's request for mandamus relief. We granted the Hospital's request for mandamus review to consider the application of Rule 193.3(d)'s snap-back provision to the Northcutt documents. Mandamus is appropriate if we conclude that the documents are in fact privileged and have been improperly ordered disclosed by the trial court. See In re Bass, 113 S.W.3d 735, 738 (Tex.2003).

II. Discussion
A. The Parties' Arguments

The Hospital claims the Northcutt documents were created or generated in connection with the Hospital's internal investigation conducted in anticipation of litigation; therefore, the work-product privilege shields them from discovery. See TEX.R. CIV. P. 192.5(a), (b).1 According to the Hospital, the privilege was not lost when the documents were transmitted to Menzies because waiver can only occur when privileged documents are voluntarily and knowingly disclosed, not when disclosure is inadvertent. The Hospital claims this principle is embodied in Rule 193.3(d)'s snapback provision, which mandates the return of privileged documents that have been inadvertently produced. Because it properly invoked Rule 193.3(d)'s snap-back provision, the Hospital argues, the trial court erred in determining that the privilege was waived. The Hospital further contends that Rule 192.3(e)(6), which mandates disclosure of all documents provided to a testifying expert, is not implicated because the Northcutt documents were not "prepared by or for the expert," and even if they were, Menzies did not read them. TEX.R. CIV. P. 192.3(c). Under these circumstances, the Hospital claims, the snap-back rule that protects the work-product privilege against inadvertent disclosure prevails.

For purposes of this appeal, Palmer does not dispute the privileged nature of the documents, nor does she challenge the Hospital's assertion that it complied with the snap-back procedures that Rule 193.3(d) requires for the return of inadvertently produced documents. Rather, Palmer contends Rule 193.3(d)'s snap-back provision does not apply to information that Rule 192.3 makes discoverable once it is provided to a testifying expert. Palmer further challenges the Hospital's statement that Menzies did not "read" the inadvertently transmitted documents, arguing a fact issue exists regarding the extent of her review. In any event, Palmer contends, whether or not Menzies actually relied upon the documents in forming her opinion is not dispositive, because implicit in Rule 192.3's disclosure requirement is the notion that documents an expert chooses to regard and those she chooses to disregard in forming an opinion are both relevant and necessary for effective cross-examination.

We begin by examining the discovery rules in dispute, applying the same rules of construction that govern the interpretation of statutes. See BASF Fina Petrochemicals Ltd. v. H.B. Zachry, 168 S.W.3d 867, 871 (Tex.App.-Houston [1st Dist.] 2004, pet. denied); see also In re Emeritus Corp., 179 S.W.3d 112, 114 (Tex. App.-San Antonio 2005, orig. proceeding) (holding that a rule of procedure is subject to the same rules of construction as statutes). When a rule of procedure is clear and unambiguous, we construe the rule's language according to its plain or literal meaning. See Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002).

B. Discovery from Testifying Experts

Texas Rule of Civil Procedure 192.3(e), which defines the scope of permissible discovery from experts, provides in pertinent part as follows:

A party may discover the following information regarding a testifying expert . . .:

* * *

(3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;

(4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them;

(5) any bias of the witness;

(6) 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; . . . .

TEX.R. CIV. P. 192.3(e) (emphasis added). We must first decide whether this rule applies to the Northcutt documents; if it does not, the documents retain their privileged nature and may be recovered pursuant to Rule 193.3(d)'s snap-back feature.

Rule 192.3(e)(6) was promulgated in 1999 to replace former Rule 166b, which permitted discovery of only those "documents . . . prepared by an expert or for an expert in anticipation of the expert's trial and deposition testimony." TEX.R. CIV. P. 166b(2)(e)(2) (repealed). Under this former rule, privileged work product lost its protected status if the material provided to the expert was, in fact, relied upon by the expert as the basis for his or her testimony. See D.N.S. v. Schattman, 937 S.W.2d 151, 156 (Tex.App.-Fort Worth 1997, orig. proceeding) (noting that privilege is waived when an expert relies on a privileged document as the basis for the expert's opinion); Aetna Cas. & Sur. Co. v. Blackmon, 810 S.W.2d 438, 440 (Tex.App.-Corpus Christi 1991, orig. proceeding) (holding that an expert witness's possession of documents did not automatically waive attorney-client and work-product privileges). Thus, under the pre-amendment rule, if an expert did not rely on a privileged document, it was not discoverable.

To avoid the discovery disputes that frequently arose over what material an expert may or may not have relied upon, the rule was amended in 1999 to include more expansive language. In addition to documents "prepared by or...

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