Hot Topics for Trial Lawyers
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When Rules Collide
Posted 4/9/10 Josh Borsellino, Haynes and Boone, LLPWhen Rules Collide: "Snap Back" Rules Do Not Always Protect Against Inadvertent Disclosure of Privileged Documents
By: Josh Borsellino1
Both the Texas and Federal Rules of Civil Procedure have "snap back" provisions designed to protect against the inadvertent production of privileged documents.2 As a result, most litigators assume that an unintentionally produced, privileged document can always be "snapped back" if it is done in a timely manner. But a recent Texas Supreme Court case highlights the tension between snap back provisions and the rules governing expert discovery, and makes it clear that Texas' snap back provision does not apply when a party inadvertently provides privileged documents to its testifying expert.
This issue was decided by the Texas Supreme Court in 2007 in In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. 2007) (orig. proceeding). In Christus, the defendant attempted to "snap back" privileged documents that were accidentally provided to its designated testifying expert witness.3 The documents were provided to the expert because a paralegal mistakenly believed the documents would remain confidential.4 The first time the defendant's counsel learned that the documents had been provided to the expert was at the expert's deposition.5 At the deposition, the expert testified that she "didn't read every bit" of the privileged documents, but had merely "glanced" at them.6 The defendant then attempted to snap-back the documents under TEX. R. CIV. P. 193.3(d), which provides as follows:
A party who produced material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if - within ten days or shorter time ordered by the court, after the producing party actually discovers that such production was made - the producing party amends the response, identifying the material or information produced and stating the privilege asserted.The Court noted that TEX. R. CIV. P. 192.3(e) defines the scope of permissible discovery from experts, and provides that a party may discover, among other things, "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 ... ."7 The Court found that the concepts of waiver and intent required to effect the snap-back provision of Rule 193.3(d) "do not appear in our testifying-expert disclosure rule."8 As such, the Court concluded that under the plain language of Rule 192.3(e), "documents ... provided to a testifying expert lose their work-product designation irrespective of the intent that accompanied their production."9
The Court also rejected the defendant's argument that the inadvertently produced documents could be snapped back because they were not material to the expert's opinions. The Court held that the impact of the documents on the expert's opinions are irrelevant, because "[m]aterials both accepted and rejected by an expert are indicative of the process by which the expert went about forming his or her opinion and may provide an effective basis for cross examination." The Court noted that its holding was in accord with a majority of the rulings under the Federal Rules of Civil Procedure,10 as well as decisions by other state courts.11
The Court stated in dicta that a party that has inadvertently produced documents is not without a remedy, as it "may presumably withdraw the expert's designation ... ."12 With such a harsh "remedy," it is important for practitioners to carefully scrutinize any documents to be provided to their own experts (rather than relying on paralegals to gather and send such documents), and to thoroughly examine the working files of all opposing experts.
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1 Mr. Borsellino is an associate in the Business Litigation Section of Haynes and Boone, LLP. The opinions expressed here are not those of Haynes and Boone or its clients.
2 See TEX. R. CIV. P. 193.3(d); FED. R. CIV. P. 26(b)(5)(B).
3 Id. at 435.
4 Id. at 436.
5 Id.
6 Id.
7 Id. at 437-38 (emphasis added).
8 Id. at 439.
9 Id. at 439-40.
10 Id. at 441-42 (citing, e.g. Reg'l Airport Auth. v. LFG, LLC, 460 F.3d 697, 714 (6th Cir. 2006) (concluding that a "majority of courts" favor a bright-line rule of full disclosure of documents produced to a testifying expert); In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1374 (Fed. Cir. 2001).
11 Id. at 442-43 (citing Tracy v. Dandurand, 30 S.W.3d 831, 836 (Mo. 2000); Gall v. Jamison, 44 P.3d 233, 234 (Colo. 2002).
12 Id. at 445.