Attorney Client Privilege Protects Non-Retained Expert Communications

The Houston 14th Court of Appeals issued an opinion today, in-re-texas-windstorm, which will solidify and strengthen the strategy of using one’s clients as experts to prove the reasonableness of conduct by insurers in first party bad faith and coverage disputes. The ruling applies to virtually every other civil lawsuit in Texas, including claims against lawyers, doctors, engineers and accountants.

This case arose out of an insurance dispute. The Plaintiff sought a partial summary judgment on one aspect of the case. Our client submitted an affidavit by an employee which contained expert opinions supporting its response. The Trial Court ordered that our client divulge all attorney-client communications between its counsel and its corporate representative.

The Plaintiff tried to re-write Texas’ rules regarding expert discovery to require production of privileged attorney-client communications any time a party testifies on its own behalf as an expert witness. In short, Plaintiff’s counsel argued they had found a loophole that would allow backdoor discovery of attorney client communications whenever a party might elect to act as its own expert witness in a civil lawsuit. The Court of Appeals found that the Trial Court abused its discretion by ordering production of the privileged communications, which included drafts of the affidavit submitted in response to the Plaintiff’s motion for partial summary judgment.

The case also involved a “snap back” motion which the Trial Court denied. When TWIA responded to the Plaintiff’s motion to compel seeking production of all of the communications between TWIA’s counsel and its client, the documents which were to be tendered to the court under seal were inadvertently included in the response to the Plaintiff’s motion. The Court found our team did everything it was supposed to do to obtain the withdrawal of the documents and ruled that the Trial Court abused its discretion by not allowing their withdrawal. The Court also noted that the Plaintiff’s attorneys improperly refused to return the “snapped back” documents.

The issue of preservation of attorney-client privilege goes to the very foundation of our civil justice system. Closing this purported evidentiary loophole before it opens is significant not only for this case but for any civil case in Texas.

Kudos to our team, including Andrew McKinney, Tory Taylor and David Salyer.