"Texas Supreme Court: Attorney-Client Privilege Protects Communications with Employee-Experts"

Publication

02.20.2019

In re City of Dickinson¹ is an important case for businesses with an employee who will testify as an expert. The question for the court was which competing rule prevails: the rule protecting attorney-client communications or the rule requiring disclosure of everything sent to or received from a testifying expert? Or, must a company sacrifice the attorney-client privilege to have an in-house expert testify?

Expert Discovery Rules Do Not Trump the Attorney-Client Privilege

The Texas Supreme Court clarified that when a client or its employee is designated as a testifying expert, the expert discovery rules² do not trump the attorney-client privilege.³ The court affirmed that email communications between the client’s lawyer and the client’s employee-expert transmitting drafts of the expert’s affidavit were privileged. The court noted that the Texas Rules of Civil Procedure provide “that a party ‘may discover’ testifying-expert materials,” but “nothing in its language permits such discovery when the materials are attorney-client privileged.” The court may be moving Texas expert discovery closer to the Federal Rules of Civil Procedure, which protect from discovery most expert communications, whether to employee-experts or outside experts.⁴ 

Attorney-Client Privilege Extends to “Client Representatives” Other than Employees

While answering the employee-expert question clearly, the opinion may have raised another question. Although Dickinson’s facts involved lawyer-to-employee-expert communications, the court noted that the attorney-client privilege applies to a “client or its representative” as a testifying expert. Under Tex. R. Evid.503, cited by the court, a “client representative” includes “any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client.”⁵ The privilege also protects communications by the client and the client’s representative to a lawyer or the lawyer’s representative representing a party in a pending action, “if the communications concern a matter of common interest in the pending action.”⁶ Does the privilege operate the same with respect to these “client representative” communications?

Construction Industry Application

This question is important to the construction industry. Owners, architects, contractors, and subcontractors are frequently involved in litigation or arbitration. Under AIA contracts, owners routinely designate architects as the “Owner’s Representative.” When the contractor or subcontractors sue an owner for claims arising out of design issues, the owner often designates its architect as an expert. The “client’s representative” language in Dickinson might allow the owner to assert the attorney-client privilege as to communications between the client-owner’s lawyer and the client’s architect-expert, even though the architect is not the owner’s employee. But what if the owner’s architect-expert was also sued? Could Dickinson be stretched so far as to allow privileged communications between the client’s lawyer and the architect-expert since the owner and the architect have a common interest in the pending litigation? Whether the Texas Supreme Court would extend the attorney-client privilege in this context remains an open question.

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1.	No. 17-0020 (Tex.Feb. 15, 2019).
2.	Tex. R. Civ. P. 192.3(e)(6),194.2(f)(4)(A).
3.	Tex. R. Evid. 503.
4.	Fed. R. Civ. P.26(b)(4).
5.	Tex. R. Evid.503(a)(2)(B); see also In re Monsanto Co., 998 S.W.2d 917, 928 (Tex. App.—Waco 1999, no pet.) (holding that attorney-client privilege protected communications between client’s lawyer and client’s “employees, representatives or agents” during course of lawyer’s providing legal services to client).
6.	Tex. R. Evid. 503(b)(1)(C).