In re City of Dickinson

• Decision Date: 15 February 2019
• Docket Number: No. 17-0020,17-0020
• Citation: 568 S.W.3d 642
• Parties: IN RE CITY OF DICKINSON, Relator
• Court: Texas Supreme Court

568 S.W.3d 642

IN RE CITY OF DICKINSON, Relator

No. 17-0020

Supreme Court of Texas.

Argued September 12, 2018

Opinion Delivered: February 15, 2019

R. Brent Cooper, David H. Jones, Diana L. Faust, for Texas Alliance for Patient Access, Texas Osteopathic Medical Association, Texas Hospital Association and Texas Medical Association.

James A. Collura Jr., E. Todd Presnell, Jessica Jernigan-Johnson, for The International Association of Defense Counsel and The Association of Corporate Counsel.

Roger W. Hughes, for Texas Association of Defense Counsel.

Tory F. Taylor, James R. Old Jr., David P. Salyer, Kim Edwards Cooper, Andrew T. McKinney IV, Cynthia C. Johnson, for Texas Windstorm Insurance Association.

Zachary Brennan DesAutels, Christopher J. Leavitt, Shaun Wesley Hodge, Joe Boyd ‘Trey’ Henderson III, James Eloi Doyle, Anthony G. Buzbee, for City of Dickinson.

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 TEX. R. CIV. P. 192.3(e)(6) ; 194.2(f)(4)(A). The trial court agreed and ordered the client, Texas Windstorm Insurance Association, to produce the emails. This prompted Texas Windstorm to seek mandamus relief in the court of appeals.

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 emails the City seeks are "confidential communications ... made in the course of rendition of legal services." In an apparent filing error, Texas Windstorm also e-filed fifty-five pages of the emails it asserted were privileged information. Texas Windstorm discovered the filing error the next day and promptly invoked Texas Rule of Civil Procedure 193.3(d)'s snap-back provision, requesting that the City delete or destroy the emails.

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 expert is also a party or employee of a party to the litigation, and thus waive the attorney–client privilege under these circumstances.

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 192.3(e)(6) and 194.2(f)(4)(A) apply. The City submits that these two discovery rules expressly authorize the production of all documents provided to Strickland in anticipation of his expert testimony. Similarly, the City contends that the trial court's order denying snap-back of these documents was not an abuse of discretion because if the documents at issue were not privileged, they undisputedly fell within the order to compel. Finally, the City submits that because the trial court did not abuse its discretion when ordering this production, the court of appeals clearly abused its discretion when ordering the trial court to vacate its orders. See Johnson v. Fourth Court of Appeals , 700 S.W.2d 916, 918 (Tex. 1985) (holding that if there is some basis in reason and in law for a trial court's order, a court of appeals abuses its discretion when vacating the lower court's order by mandamus).

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. TEX. R. CIV. P. 194 cmt.1. Texas Windstorm frames the issue as whether a party with specialized knowledge who desires to testify as an expert must waive its attorney–client privilege to do so. It submits that a party should not have to waive the attorney–client privilege to rely on its own expertise or the expertise of an employee.

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. Texas Rule of Evidence 503(d) recognizes only four limited exceptions to the attorney–client privilege. See TEX. R. EVID. 503(d). Amici submit that we should not adopt an additional exception here because the need for materials received or reviewed by an employee-expert does not outweigh the strong, immutable policy rationale supporting Texas's attorney–client privilege.

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-NOPEC 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).

III

Texas Rule of Civil Procedure 192.3 addresses the scope of discovery in Texas. See TEX. R. CIV. P. 192.3. Subsection (a) of the rule generally addresses the applicability of privileges, stating that "a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action." Id. 192.3(a). However, subsection (e), which particularly addresses expert disclosures, provides: "A party may discover ... all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for [an] expert in anticipation of a testifying expert's testimony." Id. 192.3(e)(6). To properly...