News & Developments

Texas Supreme Court Holds that Even Inadvertently Giving a Work Product Document to a Testifying Expert Waives Privilege

When providing documents to your testifying experts be mindful not to provide work product documents. If you do, you may be forced to either lose your protection or your expert – even if you gave the protected document to the expert by mistake. In late April 2007, the Texas Supreme Court held that a litigant who inadvertently provides a work product document to a testifying expert waives protection over the document unless that expert’s designation is withdrawn. In re Christus Spohn Hospital Kleberg, No. 04-0914, 2007 WL 1225351, at *5, (Tex. Apr. 27, 2007).

In reaching its conclusion, the Texas Supreme Court had to harmonize two competing statutes. Specifically, the Court decided that Texas Rule of Civil Procedure 192.3(e)(6), which permits discovery of all documents provided to a testifying expert trumps Texas Rule of Civil Procedure 193.3(d), the “snap-back” or “claw back” rule that allows a party to retract privileged or otherwise protected documents mistakenly produced during discovery. Id.

The Christus case involved documents that were generated in the course of a hospital’s internal investigation of medical malpractice claims. Id. at *1-2. By mistake, a paralegal provided investigation documents and other protected correspondence to the hospital’s testifying expert. Although she received the documents, the expert only “glanced” at them and did not rely on them in preparing her report. Id. The documents were later produced to opposing counsel in response to a subpoena duces tecum served on the expert. Upon realizing its mistake, the hospital sought to recover the documents by asserting the work product privilege and invoking Rule 193.3(d)’s snap-back provision. The trial court overruled the hospital’s claim of protection and the court of appeals denied it mandamus relief. Id.

After granting mandamus review, the Texas Supreme Court considered whether the snap-back provision preserved protection over Rule 192.3’s mandate that documents provided to a testifying expert are discoverable. Id. Noting that the snap-back provision is usually applied when protected documents are produced directly to opposing counsel, the Court recognized that under the circumstances presented here, the fact that the documents went to the expert thus implicated the “overlapping directive” from Rule 192.3 that all material given to a testifying expert must be produced. Id. at *4. The tension between the two rules created an issue of first impression for the Court. Id.

The Court first held that, despite the fact that the expert had not read or relied on the documents, they were subject to Rule 192’s mandate for production and unprotected by the work product privilege. Id. at *3-4. The Court noted Rule 192’s expansive language, stating that the rule requires production of all documents “provided to” an expert, “whether or not the documents were actually read by or prepared for” the expert. Id.

The Court then analyzed whether the snap-back provision might preserve the documents’ protected status or require their return. Id. at *4-5. It recognized that while Rule 193.3(d) focuses on intent by protecting a party when it does not intend a waiver, Rule 192.3(e)(6) requires that “documents and tangible things provided to a testifying expert lose their work-product designation irrespective of the intent that accompanied their production.” Id. at *5.

The Court also acknowledged significant policy concerns surrounding the use of expert witnesses, including their “vast potential for influence” and their ability to testify “unfettered by first-hand knowledge requirements that constrain the ordinary witness.” Id. at 5. Because of this potential, the Court reasoned that a jury should have full knowledge of all information provided to an expert, regardless of whether that information is ultimately relied upon. It thus concluded that Rule 192.3(e)(6) prevails over Rule 193.3(d) “so long as the expert intends to testify at trial despite the inadvertent document production.” Id. at 8.

However, the Court noted that a “producing party in such a situation is not without a remedy” and can choose to withdraw its expert designation and name another. Id. at 10. In so choosing, the party can recover its privileged documents upon realizing its mistake. Id.

Contributed by Wendie Childress
Yetter & Warden, LLP
Houston, TX