Does a Client Who Testifies as an Expert Witness in His Own Case Waive Attorney-Client Privilege as to His Expert Testimony?

The Texas Supreme Court recently heard a mandamus petition concerning expert testimony and attorney-client privilege.

The City purchased a commercial windstorm policy from the client insurance company. In the underlying litigation, the City alleged that the client hadn’t paid all it owed under the policy for property damage caused by Hurricane Ike. The dispute here stemmed from a motion for summary judgment filed by the City on causation. In responding to the motion, the client included the affidavit of its corporate representative and senior claims examiner. The claims examiner’s affidavit provided both factual and expert opinion testimony on the client’s behalf.

The City argued that email communications in the underlying action between an attorney and his client about the client’s expert testimony were discoverable. The City argued that as the client’s opposing party, it was entitled to discover “all documents . . . provided to, reviewed by, or prepared by or for [an] expert in anticipation of a testifying expert’s testimony.”

The trial court agreed and ordered the client to produce the emails. The client then sought mandamus relief in the court of appeals. That court found that the communications were protected from disclosure and directed the trial court to vacate its order compelling their production.

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