PRESERVING AND WAIVING PRIVILEGES - TexasBarCLE

PRESERVING AND WAIVING PRIVILEGES

Thomas C. RineyGIBSON, OCHSNER & ADKINS, L.L.P.

701 South Taylor, Suite 500Amarillo, Texas 79101-2400

State Bar of TexasAdvanced Evidence and Discovery Course 1998

Houston, TexasNovember 12-13, 1998

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TABLE OF CONTENTS

Page

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. SOURCES OF PRIVILEGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Exemptions From Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. CURRENT RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. NEW RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

a. Work Product . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

(1) Definition of "Work Product" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2(2) Protection of Work Product . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2(3) Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

b. Consulting Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3c. Witness Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Privileges Under the Rules of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. REQUIRED REPORTS PRIVILEGED BY STATUTE . . . . . . . . . . . . . . . . . . . 42. LAWYER-CLIENT PRIVILEGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

a. The "Client" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4b. Confidential Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5c. Exceptions to the Lawyer-Client Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . 6

(1) Furtherance of Crime or Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6(2) Claimants Through Same Deceased Client . . . . . . . . . . . . . . . . . . . . . . . 6(3) Breach of Duty by Lawyer or Client . . . . . . . . . . . . . . . . . . . . . . . . . . . 6(4) Document Attested by a Lawyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7(5) Joint Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

3. HUSBAND-WIFE PRIVILEGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74. COMMUNICATIONS TO MEMBERS OF THE CLERGY . . . . . . . . . . . . . . . . 75. POLITICAL VOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86. TRADE SECRET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87. IDENTITY OF INFORMER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88. PHYSICIAN-PATIENT PRIVILEGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

a. Identity of Blood Donors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9b. The Patient-Litigant Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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9. CONFIDENTIALITY OF MENTAL HEALTHINFORMATION IN CIVIL CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. Statutory Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. MEDICAL COMMITTEE REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112. OTHER PEER REVIEW COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123. CHIROPRACTOR-PATIENT COMMUNICATIONS . . . . . . . . . . . . . . . . . . . 124. PODIATRIST-PATIENT COMMUNICATIONS . . . . . . . . . . . . . . . . . . . . . . 125. NURSING HOME REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126. RECORDS OF BLOOD DONORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137. SOCIAL SECURITY RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138. MEDICAL QUALITY ASSURANCE REPORTS OF

THE DEPARTMENT OF DEFENSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149. STATE BAR DISCIPLINARY PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . 1410. COMMUNICATIONS IN DISPUTE RESOLUTION

PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

D. Constitutional Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. THE RIGHT AGAINST SELF-INCRIMINATION . . . . . . . . . . . . . . . . . . . . . 142. PRIVILEGE FOR FREE EXERCISE OF RELIGION . . . . . . . . . . . . . . . . . . . 143. REPORTER'S PRIVILEGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154. MEMBERSHIP LISTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

III. WAIVER OF PRIVILEGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16B. Non-voluntary Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

1. PRIVILEGED MATTER DISCLOSED UNDERCOMPULSION OR WITHOUT OPPORTUNITYTO CLAIM PRIVILEGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2. INADVERTENT PRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173. OFFENSIVE USE DOCTRINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174. MATERIALS FURNISHED TO EXPERT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195. WRITING USED TO REFRESH MEMORY . . . . . . . . . . . . . . . . . . . . . . . . . . 19

IV. ASSERTING A PRIVILEGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Objection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19B. Withholding Privileged Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19C. Describing Withheld Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20D. Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20E. Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20F. Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20G. Use of Information If No Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Preserving and Waiving Privileges R-1

Preserving and Waiving PrivilegesThomas C. Riney

I. INTRODUCTIONQuestions regarding preservation and evidence rules which may in turn draw upon

waiver of privileges continue to be frequent privileges arising from statute or constitution.subjects of discovery disputes, evidentiary For example, Rule 166b establishes certainarguments at trial, and in appellate opinions. privileges and but also exempts from discoveryThe law continues to develop in the area of "any matter protected from discovery by anyprivileges, not only by appellate opinion but other privilege." Rule 166b will be replaced byalso by recent amendments to the Texas Rules Proposed Rule 192.3. This amended ruleof Evidence and proposed amendments to the takes a different approach and generally fol-Texas Rules of Civil Procedure. This paper lows the approach of the Federal Rules of Civildiscusses sources of privileges, some of the Procedure, i.e., parties may obtain discoverymore significant case law on privileges, and the of any matter, not privileged, which is relevantpreservation and waiver of such privileges in to the subject matter of the pending case. Itcivil cases with an emphasis on the effect of does not create any privileges except for arecent cases, the recent amendments to the consulting expert privilege in subdivision (e).Texas Rules of Evidence, and the proposed Proposed Rule 192.5 defines "core workamendments to the Texas Rules of Civil Proce- product," which is not discoverable, and "otherdures. work product," which is discoverable only

All references to "the Rules" or "the upon a showing of substantial need and inabil-Proposed Rules" refer to the Texas Rules of ity to obtain the information otherwise withoutCivil Procedure. The Texas Rules of Civil undue hardship. TEX. R. EVID. 501 providesEvidence were combined with the Texas Rules that no one has a privilege to refuse to be aof Criminal Evidence to become the Texas witness, to disclose any matter, refuse toRules of Evidence effective March 1, 1998.) produce any object or writing, or preventReferences to the proposed amendments to the another from being a witness or disclosing anyTexas Rules of Civil Procedure refer to the matter or producing any object or writing,August 4, 1998 draft, which appeared in the except as otherwise provided by constitution,September 1998 Texas Bar Journal at p. 752. statute, or the Rules of Evidence. TEX. R.

The author acknowledges drawing heavily EVID. 502-510 establish several privileges.from the following papers on this subject, allof which are outstanding: Paul Gold, "Scopeof Discovery in Texas," 1998, State Bar ofTexas Advanced Personal Injury Law Course 1. CURRENT RULESJuly/August 1998; Pamela Stanton Baron, Rule 166b(3) provides that the following"Privileges and Exemptions From Discovery," matters are protected from disclosure byState Bar of Texas Advanced Personal Injury privilege:Law Course July/August 1996; Thomas H.Watkins and John Hathaway, "Privileges," 1. Work product;Eighth Annual Advanced Evidence and Dis- 2. Consulting experts;covery Course, State Bar of Texas, November 3. Witness statements;1995; and Paul Gold, "Privileges: Is Nothing 4. Party communications;Sacred Anymore?" State Bar of Texas, Eigh- 5. Other privileged information.teenth Annual Advanced Civil Trial Course,August, September, October 1995. The Rule allows discovery of witness state-

II. SOURCES OF PRIVILEGESPrivileges arise from discovery rules and

A. Exemptions From Discovery

ments and party communications only upon a


showing of substantial need and inability party seeking discovery has a sub-without undue hardship to obtain the substan- stantial need of the materials in thetial equivalent of the materials by other means. preparation of the party's case and

2. NEW RULES due hardship to obtain the substantial

a. Work Product means.

(1) Definition of "Work Product" ! Under subdivision (b)(3), the factFor the first time in Texas rules, "work that attorney mental processes other-

product" is defined. The proposed rule does wise protected as "core work prod-not retain a category for "party communica- uct" might be incidentally disclosedtions," but such communications are encom- by inference does not preclude pro-passed within the definition of "work product." duction of "other work product."

Under Proposed Rule 192.5(a), "work The court must, insofar as possible,product" comprises: protect against disclosure of the men-

! (a) material prepared or mental im- sions, or legal theories not otherwisepressions developed in anticipa- discoverable when ordering discov-tion of litigation or for trial by or ery of "other work product."for a party or a party's represen-tatives, including the party's at- (3) Exceptionstorneys, consultants, sureties, The following items are not work productindemnitors, insurers, or agents; protected from discovery even if made oror prepared in anticipation of litigation or trial

! (b) a communication made in antici-pation of litigation or for trial (4) Information discoverable under Rulebetween a party and the party's 192.3 concerning experts, trial witnesses,representatives or among a p- witness statements, and contentions;arty's representatives. (5) Trial exhibits ordered disclosed under

(2) Protection of Work Product (6) The name, address, and telephone

! Subdivision (b) of Proposed Rule with knowledge of relevant facts;192.5 differentiates between "core (7) Any photograph or electronic imagework product" and "other work of underlying facts (e.g., a photograph of theproduct." "Core work product" is accident scene) or a photograph or electronicthe work product of an attorney or image that a party intends to offer into evi-an attorney's representative that con- dence; andtains the attorney's or the attorney's (8) Any work product created underrepresentative's mental impressions, circumstances within an exception to theopinions, conclusions, or legal theo- attorney-client privilege in Rule 503(d) of theries. Core work product is not dis- Rules of Evidence.coverable.

! Any other work product is discov- The privilege for consulting experts iserable only upon a showing that the essentially unchanged: the identity, mental

that the party is unable without un-

equivalent of the material by other

tal impressions, opinions, conclu-

under Proposed Rule 192.5(c):

Rule 166 or Rule 190.4;

number of any potential party or any person

b. Consulting Experts


impression, and opinions of a consulting expert cannot invade the consulting expertwhose mental impressions and opinions have privilege. Id. at 475.not been reviewed by a testifying expert arenot discoverable. Proposed Rule 192(3)(e). c. Witness Statements

! The privilege extends only to the that protected witness statements from disclo-opinions of consulting experts but sure. Proposed Rule 192.3(h) takes the oppo-not facts. Axelson, Inc. v. McIlhany, site approach:798 S.W.2d 550, 554 (Tex. 1990).Thus, an employee may be a"consulting-only" expert, but theemployer cannot shield the employeefrom testifying if the employee worksin an area that becomes the subject ofthe litigation, nor can the employershield the employee by changing thatperson's designation from a "factwitness" to a "consulting-only" ex-pert.

! Likewise, a physician engaged fortreatment or examination of a patientcannot be "shielded by the consultingexpert privilege; the physician mustbe retained solely for consultation inanticipation of litigation." Teran v.Longoria, 703 S.W.2d 300, 301(Tex. App.--Corpus Christi 1985,orig. proceeding).

! Requiring a party to designate inadvance whether its crash testing wasto be used for evidentiary purposesor solely for consulting purposes andordering that the opposing party beallowed to attend those tests desig-nated as evidentiary invades the con-sulting expert privilege. GeneralMotors Corp. v. Gayle, 951 S.W.2d469, 473-75 (Tex. 1997).

! No substantial hardship exceptionexists for the consulting expert privi-leges, unlike the exceptions for wit-ness statements and party communi-cations. Even if the other party doesnot have resources to perform itsown crash test, an opposing party

Rule 166b(3)(c) established a privilege

Statements of persons withknowledge of relevant facts. Aparty may obtain discovery of thestatement of any person with knowl-edge of relevant facts -- a "witnessstatement" -- regardless of when thestatement was made. A witnessstatement is (1) a written statementsigned or otherwise adopted or ap-proved in writing by the person mak-ing it, or (2) a stenographic, mechan-ical, electrical, or other type of re-cording a witness' oral statement orany substantially verbatim transcrip-tion of such a recording. Notestaken during a conversation or inter-view with a witness are not a witnessstatement. Any person may obtain,upon written request, his or her ownstatement concerning the lawsuit,which is in the possession, custody orcontrol of any party.

! Consider comment 9 to ProposedRule 192, which notes that eliminat-ing the "witness statement" exemp-tion does not render all witness state-ments automatically discoverable.Instead, "witness statements" aresubject to the same rules concerningthe scope of discovery, work prod-uct, and privileges applicable to otherdocuments or tangible things.

B. Privileges Under the Rules of Evidence

1. REQUIRED REPORTS PRIVILEGEDBY STATUTE

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Reports that are required by law to be entity, in place of the "control group test" thatmade are privileged if the law requiring the had previously been adopted. See Nationalreport provides for confidentiality. Either the Tank Co. v. Brotherton, 851 S.W.2d 193,person or entity making the report or the 197-98 (Tex. 1993). Under the control groupofficer or agency to whom the report is re- test, the "client" included only the entity andquired to be made may invoke this privilege. those people with authority to obtain legalThe privilege does not apply to actions involv- services or act on legal advice. This usuallying perjury, false statements, fraud, and the covered only a small group of people in con-return or report or other failure to comply with trol of the entity. TEX. R. EVID. 503(a)(2)the law in question. now reads as follows:

! The rule requires Texas courts to A "representative of the client" ishonor a privilege granted under the "(A) a person having authority tolaw of a foreign country. Davidson obtain professional legal services, orv. Great Nat'l Life Ins. Co., 737 S- to act on advice thereby rendered, on.W.2d 312, 314 (Tex. 1987). behalf of the client, or (B) any other

! The fact that a company must investi- tuating legal representation of thegate sexual harassment claims under client, makes or receives a confiden-Title VII does not shield the notes tial communication while acting infrom the investigation with the privi- the scope of employment for thelege under this rule. Star-Telegram, client."Inc. v. Schattman, 784 S.W.2d 109,111 (Tex. App.--Fort Worth 1990, ! Under TEX. R. EVID. 503, a public ororig. proceeding). private entity, including a govern-

2. LAWYER-CLIENT PRIVILEGE and a city council has a right to meetA client generally has a privilege to refuse in executive session with its attorney

to disclose and to prevent any other person to discuss a lawsuit. Markowski v.from disclosing confidential communications City of Marlin, 940 S.W.2d 720,made for the purpose of facilitating the rendi- 726-27 (Tex. App.--Waco 1997, writtion of professional legal services to the client denied). The city does not violate(a) between the client or the client's represen- the Open Meetings Act by meetingtative and the client's lawyer or the lawyer's with its attorney. Id. at 725.representative, (b) between the lawyer and thelawyer's representative, (c) by the client or the ! When a trustee hires a lawyer toclient's representative or the client's lawyer or assist in the administration of thethe lawyer's representative to a lawyer or trust, the client is the trustee, not theanother party in a pending action concerning a trust or its beneficiaries. Thus, thematter of common interest, (d) between repre- beneficiary cannot compel the attor-sentatives of the client or between the client ney to reveal confidential communi-and representatives of the client, or (e) among cations with the trustee for the pur-lawyers and their representatives representing poses facilitating the rendition ofthe same client. TEX. R. EVID. 503(b). legal services to the trustee under

a. The "Client" eShazo, 922 S.W.2d 920 (Tex.Effective March 1, 1998, Texas adopted 1996).

the "subject matter test" for the privilege of an

person who, for the purpose of effec-

mental body, is considered a client,

TEX. R. EVID. 503. Huie v. D-






! TEX. R. EVID. 503(b)(1)(C) gives rise S.W.2d 851, 858 (Tex. App.--Austinto the "joint defense privilege." This 1983, writ ref'd n.r.e.).provision protects pooled informa-tion among different lawyers repre- ! Once a document is determined to besenting different clients with a com- privileged, the entire document ismon interest. Ryals v. Canales, 767 privileged, including facts relevant toS.W.2d 226, 228 (Tex. App.--Dallas the case that are contained in the1989, orig. proceeding). See also document because the facts can beGulf Oil Corp. v. Fuller, 695 S.W.2d obtained through discovery means769 (Tex. App.--El Paso 1985, orig. other than production of the privi-proceeding). Participation in a joint leged document. Pittsburgh Corningdefense agreement can result in sub- Corp. v. Caldwell, 861 S.W.2d 423,sequent disqualification of an attor- 424 (Tex. App.--Houston [14th D-ney from taking a position adverse to ist.] 1993, orig. proceeding).one of the other parties to the jointdefense agreement. National Medical ! Communications regarding non-con-Enter., Inc. v. Godbey, 924 S.W.2d fidential matters such as the terms123 (Tex. 1996). and conditions of an attorney's em-

b. Confidential Communication the attorney has been engaged areA confidential communication is one not not privileged. Borden, Inc. v.

intended to be disclosed to third persons other Valdez, 773 S.W.2d 718, 720 (Tex.than those to whom it is made in the further- App.--Corpus Christi 1989, orig.ance of the rendition of professional legal proceeding); Duvall County Ranchservices to the client or those reasonably Co. v. Alamo Lumber Co., 663 S-necessary for the transmission of the .W.2d 627, 634 (Tex. App.--Ama-communication. rillo 1983, writ ref'd n.r.e.); see also

! The complete communication be- 784 S.W.2d 100, 105 (Tex. App.--tween client and counsel, and not just Waco 1989, orig. proceeding).legal advice, comes within the com-munication and is privileged. Keene ! A memorandum briefing asbestosCorp. v. Caldwell, 840 S.W.2d 715 plaintiffs for their depositions that a(Tex. App.--Houston [14th Dist.] law firm used is a confidential com-1992, orig. proceeding); GAF Corp. munication protected by thev. Caldwell, 839 S.W.2d 149 (Tex. attorney-client privilege. TEX. R.App.--Houston [14th Dist.] 1992, EVID. 612, which allows access to aorig. proceeding); see also DeWitt & document used by a witness to re-Rearick, Inc. v. Ferguson, 699 fresh the witness' memory, does notS.W.2d 692 (Tex. App.--El Paso overrule the attorney-client privilege.1985, orig. proceeding). In re Brown, No. 03-97-00609-CV,

! Documents that pre-existed the rela- April 3, 1998, orig. proceeding).tionship do not become privileged bythe client transferring them to the c. Exceptions to the Lawyer-Client Privilegeattorney. Mortgageamerica Corp. v. TEX. R. EVID. 503(d) sets out the excep-American Nat'l Bank of Austin, 651 tions to lawyer-client privilege:

ployment and the purpose for which

Allstate Texas Lloyds v. Johnson,

1998 WL 207793 (Tex. App.--Austin

















(1) Furtherance of Crime or Fraud sub nom, Granada Corp. v. FirstThere is no privilege if the services of the Court of Appeals, 844 S.W.2d 223

lawyer were for the purposes of enabling or (Tex. 1992).aiding anyone to commit or plan to commitwhat the client knew or reasonably should (2) Claimants Through Same Deceased Clienthave known to be a crime or fraud. TEX. R. A communication relevant to an issueEVID. 503(d)(1). between parties who claim through the same

! A communication is protected if the whether the claims are by testate or intestateclient seeks advice, is told that the succession or by inter vivos transactions.conduct was illegal, and does not TEX. R. EVID. 503(d) (2).commit the act. Williams v. Wil-liams, 108 S.W.2d 297, 299-300 (3) Breach of Duty by Lawyer or Client(Tex. Civ. App.--Amarillo 1937, no The attorney-client privilege does notwrit). extend to a communication relevant to an issue

! For the exception to apply, there or by the client to the lawyer. This can involvemust be a prima facie showing of the an attack on an attorney's integrity by thecontemplated fraud and the docu- client, a dispute over attorney's fees, or thement sought must bear a relationship issue of adequate representation raised by theto the prima facie case and suggest a client. See West v. Solito, 563 S.W.2d 240,possibility of fraud. Granada Corp. 245 n.3 (Tex. 1978); Scrivner v. Hobson, 854v. First Court of Appeals, 844 S- S.W.2d 148 (Tex. App.--Houston [1st Dist.].W.2d 223, 227 (Tex. 1992). 1993, orig. proceeding).

! The party asserting the lawyer-client (4) Document Attested by a Lawyerprivilege bears the burden of proving A communication relevant to an issueit, but the party seeking discovery concerning a document to which a lawyer is anbears the burden of establishing the attesting witness is not privileged. See Gilbertcrime-fraud exception. Volcanic McClure Enter. v. Burnett, 735 S.W.2d 309,Gardens Management Co. v. Paxon, 311 (Tex. App.--Dallas 1987, orig. proceed-847 S.W.2d 343, 347 (Tex. App.--El ing).Paso 1993, orig. proceeding).

! The proponent of the exception es- Communications relevant to a matter oftablishes a prima facie case by pro- common interest between or among two orducing evidence that, if believed by more clients made by any of them to a lawyerthe trier of fact, would establish the retained or consulted in common is not privi-elements of a crime or fraud and leged when offered in an action between orwould establish that the fraud was among any of the clients. Scrivner v. Hobson,ongoing or about to be committed 854 S.W.2d 148, 151 (Tex. App.--Houstonwhen the document was prepared. [1st Dist.] 1993, orig. proceeding).Id. at 347; Cigna Corp. v. Spears,838 S.W.2d 561, 569 (Tex. App.-- 3. HUSBAND-WIFE PRIVILEGESSan Antonio 1992, orig. proceeding); A communication made privately by anyFreeman v. Bianchi, 820 S.W.2d 853, person to that person's spouse and not in-861-62 (Tex. App.--Houston [1st tended for disclosure to any other person isDist.] 1991, orig. proceeding), app. privileged. A person has a privilege during the

deceased client are not privileged regardless of

of a breach of a duty by a lawyer to the client

(5) Joint Clients












marriage and afterwards to refuse to disclose App.--Houston [14th Dist.] 1994,and to prevent another from disclosing a orig. proceeding).confidential communication made to the per-son's spouse while they were married. TEX. R. ! Texas courts look to whether theEVID. 504(a). circumstances presented a counseling

! The privilege applies only to confi- the communication, in determiningdential communications and not to whether the privilege applies.actual matters which the spouse may Nicholson v. Wittig, 832 S.W.2dhave observed. Thus, a party cannot 681, 686 (Tex. App.--Houston [1stassert a privilege when questioned Dist.] 1992, orig. proceeding). Theabout what she saw a spouse do presence of others, such as operatingrather than what the spouse said in room personnel, does not waive theconfidence. Marshall v. Ryder Sys., privilege. Id. at 685.Inc., 928 S.W.2d 190, 195 (Tex.App.--Houston [14th Dist.] 1996, 5. POLITICAL VOTEwrit denied). A person's vote at a political election

! It is important to note that the privi- the vote was cast illegally. TEX. R. EVID. 506.lege is different in civil cases than in After an illegal vote has been established, thecriminal cases. In civil cases, there is voter can be required to disclose the tenor ofa privilege only as to the communica- his vote. See TEX. ELEC. CODE § 221.009.tion while in criminal cases, there is aprivilege not to testify. 6. TRADE SECRET

! There are exceptions to the husband- ance of the privilege will not tend to concealwife privilege for (a) furtherance of fraud or otherwise work injustice. Whencrime or fraud, (b) a proceeding be- directing disclosure, the judge must taketween the spouses in civil cases, (c) a measures to protect the rights of the privilegeproceeding involving a crime against holder, the parties, and any measures thea spouse or minor child, (d) a com- furtherance of justice may require. The rulemitment or similar proceeding involv- does not define the term "trade secret."ing a spouse, and (e) a proceeding toestablish competence. ! To successfully assert the privilege,

4. COMMUNICATIONS TO MEMBERS containing conclusory allegations thatOF THE CLERGY the information sought was propri-

Under TEX. R. EVID. 505, there is a privi- etary in nature and constituted tradelege to refuse to disclose confidential commu- secrets. Humphreys v. Caldwell, 881nications made to a member of the clergy in S.W.2d 940, 946 (Tex. App.--Cor-that member's professional character as a pus Christi 1994, orig. proceeding).spiritual advisor.

! The privilege extends to the identity Governmental entities may refuse toof the communicant as well as to the disclose the identity of a person who hascommunications. Simpson v. Ten- furnished information relating to the investiga-nant, 871 S.W.2d 301, 306 (Tex. tion of a possible violation of the law to a law

opportunity, not to the contents of

conducted by secret ballot is privileged unless

A trade secret is privileged if the allow-

there must be more than an affidavit

7. IDENTITY OF INFORMER

enforcement officer, a member of the legisla-




tive committee or its staff conducting an ing experts. Exceptions to the privilege ininvestigation. TEX. R. EVID. 508. The gov- suits affecting the parent-child relationship willernmental entity must claim the privilege and now be addressed as they would in all otherit covers only the identity of the informer and proceedings involving the patient-litigantnot the communications. exceptions. The rule governs only disclosures

! The privilege applies to civil cases. judicial or administrative proceedings. W-Hobson v. Moore, 734 S.W.2d 340 hether a physician may or must disclose the(Tex. 1987). communications under other circumstances is

! The privilege can be waived where a art.4495b, § 5.08. See comment to 1998party does not timely assert the privi- change.lege in response to an interrogatory. As a general rule, confidential com-State of Texas v. Lowry, 802 S.W.2d munications between a physician and a patient,669, 673 (Tex. 1991); Hobson v. relative to or in connection with any profes-Moore, 734 S.W.2d at 341. sional services rendered by a physician to the

! The privilege is also incorporated closed. Records of the identity, diagnosis,into the Open Records Act. TEX. evaluation, or treatment of a patient are like-GOV'T CODE § 552.108. wise privileged. TEX. R. EVID. 509(c). A

! There are other exceptions to the medicine in any state or nation, or reasonablyprivilege such as voluntary disclo- believed by the patient to have such a license.sure, the use of the informer as awitness by the public entity, or, under ! One court recently construed thecertain circumstances, if the testi- privilege to include the records of amony is necessary to the fair determi- chiropractor. In re Dolezal, 970nation of a material issue on the mer- S.W.2d 650, 652 (Tex. App.--Cor-its in a civil case to which the public pus Christi 1998, orig. proceeding).entity is a party.

8. PHYSICIAN-PATIENT PRIVILEGE sician" and may not claim theThere was no physician-patient privilege physician-patient privilege. Bu-

at common law, nor by statute or ruling in chanan v. Mayfield, 925 S.W.2d 135,Texas until 1981. The privilege is now gov- 138 (Tex. App.--Waco 1996, orig.erned by TEX. R. EVID. 509. The provisions proceeding). Dental records mayof Rule 509 are mirrored in the Medical Prac- nevertheless be privileged under TEX.tice Act, TEX. REV. CIV. STAT. ANN. art. REV. CIV. STAT. ANN. art. 4549-2.4495b, § 5.08. The Texas Supreme Courtamended this rule effective March 1, 1998. ! In an action by a patient allegingBoth Rules 509 and 510 provided an exception sexual assault, the identities of otherto the privilege "when the disclosure is rele- patients who had made a complaintvant in any suit affecting the parent-child rela- against the defendant comes withintionship." The court deleted these exceptions the physician-patient privilege andbecause they were being construed too broadly cannot be discovered. In re Ander-and were subject to abuse, leading to the son, 973 S.W.2d 410 (Tex. App.--discovery of physician-patient communications Eastland 1998, orig. proceeding).in mental health records of non-parties, includ-

of physician-patient communications only in

governed by TEX. REV. CIV. STAT. ANN.

patient are privileged and may not be dis-

"physician" is a person licensed to practice

! A dentist, however, is not a "phy-






a. Identity of Blood Donors b. The Patient-Litigant ExceptionBlood donors are not "patients" and thus, There are a number of different exceptions

a court held that the names of blood donors in to the physician-patient privilege but the mostan AIDS case were discoverable. Tarrant important is the patient-litigant exception.County Hosp. Dist. v. Hughes, 734 S.W.2d This exception also applies to the mental675, 677 (Tex. App.--Fort Worth 1987, no health privilege under TEX. R. EVID. 510.writ). There, the court balanced the interestsserved by the state action with the donors' ! The privileges under these rules areinterest in privacy and held that the plaintiff's waived by a plaintiff as to medicalneed for the information outweighed the inter- records that are relevant to a claimest of the donors' privacy. The trial court had for emotional damages as well as forincluded adequate safeguards to protect the physical injuries. Groves v. Gabriel,donors' privacy outside the litigation. The 874 S.W.2 660, 661 (Tex. 1994).court in Gulf Coast Regional Blood Center v. Under such circumstances, the trialHouston, 745 S.W.2d 557 (Tex. App.--Fort court's order releasing the recordsWorth 1988, no writ), reached a similar result. should be narrowly drawn to protect

! In J.K. & Susie Wadley Research relevant to the suit.Institute & Blood Bank v. Whitting-ton, 843 S.W.2d 77 (Tex. App.-- ! Because a person asserting a claimDallas 1992, orig. proceeding), the for personal injuries waives anycourt held that test records of an- communication regarding treatmentother recipient of blood products for those injuries, the defendant'sfrom the same donor from whom the attorney may properly meet ex parteplaintiff's decedent had received with one of the plaintiff's treatingblood were not shown to have been physicians. Hogue v. Kroger Storesubject to the physician-patient privi- No. 107, 875 S.W.2d 477, 480 (Tex.lege. The court concluded that not App.--Houston [1st Dist.] 1994, writevery record maintained by a hospital denied).is subject to a physician-patient privi-lege. Id. at 85-86. Also, testing for ! The patient-litigant exception is notAIDS under the Health & Safety limited in application to a personCode is not conducted in a physician- making claims for personal injury orpatient relationship, but rather to emotional damages; in certain in-protect the health care personnel stances, the exception may apply torather than the patient. The blood the medical records of any party,bank failed to assert that the records including a defendant. In R.K. v.were confidential under the Health & Ramirez, 887 S.W.2d 836 (Tex.Safety Code, relying solely upon the 1994), the Texas Supreme Courtphysician-patient privilege. held that the exception applies when

! TEX. HEALTH & SAFETY CODE ered are relevant to the condition at§ 81.103(a) contains the confiden- issue and (2) the condition is reliedtiality provision for AIDS testing. upon as a part of the party's claim orSee also Section II.C.6, infra, regard- defense, meaning that the conditioning the statutory privilege for the itself is a fact that carries some legalidentity of blood donors. significance. Generally, the condition

privileged information that was not

(1) the records sought to be discov-

will be "part" of a claim or defense if






the pleadings indicate that the leged failure of the manufacturer tojury must make a factual deter- inform doctors of health concernsmination concerning the condi-tion itself. Id. at 842-43. Evenif both parts of the test are met,the judge must perform an incamera inspection to properlybalance competing interests andmake sure production is nobroader than necessary. Id. Thecourt thus allowed discovery ofa physician's medical and mentalhealth records in a medical mal-practice case where it was al-leged that the physician's medi-cal and mental condition causedor contributed to his allegedmedical malpractice and that thehospital and the clinic knew orshould have known of the condi-tion, and because of that condi-tion, should have supervised himbetter or not selected him at all.

! In Easter v. McDonald, 903 S.W.2d887 (Tex. App.--Waco 1995, orig.proceeding), counseling records of astepfather were discoverable despitean assertion of the privilege underTEX. R. EVID. 510 where the child'snatural father claimed sexual assaulton behalf of the minor child.

! In M.A.W. v. Hall, 921 S.W.2d 911(Tex. App.--Houston [14th Dist.]1996, orig. proceeding), certain re-cords of a physician in a medicalmalpractice action were discoverablewhere the plaintiffs alleged that thephysician may have been under theinfluence of alcohol or drugs at thetime of treatment.

! Information about patients in a casebrought by sixteen doctors against amanufacturer of breast implants forinjury to reputation, mental anguish,and loss of income based on the al-

associated by breast implants wasprotected by the physician-patientprivilege and not subject to the ex-ception. Bristol-Myers Squibb Co. v.Hancock, 921 S.W.2d 917 (Tex.App.--Houston [14th Dist.] 1996,orig. proceeding).

9. CONFIDENTIALITY OF MENTALHEALTH INFORMATION IN CIVILCASES

TEX. R. EVID. 510 establishes a privilegefor mental health information which closelyparallels Rule 509. Rule 510 was amendedeffective March 1, 1998. The rule governsdisclosure of patient-professional communica-tions only in judicial or administrative proceed-ings; the issue of whether the professional mayor must disclose such communications in othercircumstances is governed by TEX. HEALTH &SAFETY CODE §§ 611.001-611.008. Seecomment to 1998 change.

! Note that the definition of "profes-sional" refers to someone licensed orcertified by the State of Texas in thediagnosis, evaluation, and treatmentof any mental or emotional disorder.Presumably, the question of privilegein connection with a licensed profes-sional in another state would be de-termined under the law of that state.See Ford Motor Co. v. Leggat, 904S.W.2d 643, 646-47 (Tex. 1995).

! See the discussion of the patient-litigant exception in Section II.B.8.b,supra. It is essentially identical forboth TEX. R. EVID. 509 and 510.

C. Statutory PrivilegesState and federal statutes contain a num-

ber of privileges. In the Texas statutes, theyare spread among various codes and can oftenbe difficult to locate. Accordingly, the follow-ing does not purport to be an exhaustive list,








and if the attorney even suspects that a partic- App.--Corpus Christi 1995, orig.ular matter might be privileged, particularly in proceeding).connection with some type of statutorilyrequired action or report, research on the ! There is an exception to the privilegespecific issue is recommended. if a judge makes a preliminary finding

1. MEDICAL COMMITTEE REPORTS communications are relative to anThe records and proceedings of certain anti-competitive action or civil rights

medical committees, including committees of proceeding brought under 42 U.S.C.hospitals, medical organizations, medical § 1983. § 5.06(g).school, health science centers, health mainte-nance organizations, and extended care facili- ! The privileges under these statutesties are confidential and not subject to court apply to the initial credentialingsubpoena. TEX. HEALTH & SAFETY CODE process as well as to proceedings§§ 161.031-161.032. involving the retention of privileges.

! This privilege extends to records of McCown, 927 S.W.2d 1, 3 (Tex.the Joint Commission on Accredita- 1996); Irving Health Care Sys. v.tion of Health Care Organizations Brooks, 927 S.W.2d 12, 15 (Tex.(formerly the Joint Commission on 1996).the Accreditation of Hospitals) re-garding the review of a hospital. ! The physician under review can re-Humana Hosp. Corp. v. Spears-P- ceive copies of the records withoutetersen, 867 S.W.2d 858, 862 (Tex. waiving the confidentiality of theApp.--San Antonio 1993, orig. pro- information. Id. at 18.ceeding).

! The privilege neither protects the made or maintained in the regularidentity of the committee members course of business by a hospital ornor communications between com- other medical organization. Thismittee members for purposes unre- does not mean, however, that if it islated to the committee's purposes. the regular course of business of aSanta Rose Med. Ctr. v. Spears, 709 hospital to keep peer review records,S.W.2d 720, 724 (Tex. App.--San the peer review records are discover-Antonio 1986, orig. proceeding). able. The exception refers to records

A related statute is TEX. REV. CIV. STAT. individual patients as well as businessANN. art. 4495b, § 5.06. This statute gives a and administrative files and papersprivilege to proceedings and records of medi- that are separate from committeecal peer review committees. deliberations. Memorial Hosp.--The

! To qualify as a peer review commit- at 10.tee, the committee must be autho-rized to evaluate the quality of medi- ! The privileges apply even though itcal and health care services or the might severely compromise a plain-competence of physicians or health tiff's ability to present evidence incare providers. Riverside Hosp., Inc. support of a claim for negligent c-v. Garza, 894 S.W.2d 850, 855 (Tex. redentialing. Brownwood Regional

that the proceedings, records, or

Memorial Hosp.--The Woodlands v.

! Neither statute applies to records

kept in connection with treatment of

Woodlands v. McCown, 927 S.W.2d








Hosp. v. The Eleventh Court of statute. TEX. HEALTH & SAFETY CODE

Appeals, 927 S.W.2d 24 (Tex. § 162.003. See, however, Section II.B.8.a,1996). supra, regarding discovery of the identity of

2. OTHER PEER REVIEW COMMIT- certain circumstances. The statute requires aTEES notice and hearing before the court may order

Other statutes extend a privilege to peer disclosure of the results of blood tests of eachreview committees for review of non-physi- blood donor and provides for protection of thecians. These include TEX. REV. CIV. STAT. donor's identity even if the court orders aANN. art. 4551i (dentistry); TEX. REV. CIV. deposition. TEX. HEALTH & SAFETY CODE

STAT. ANN. art. 4573f (podiatry); and TEX. §§ 162.010-162.011.REV. CIV. STAT. ANN. art. 4525b (nursing).

3. CHIROPRACTOR-PATIENT COM- tember 1, 1989, and thus, were en-MUNICATIONS acted subsequent to Tarrant County

TEX. REV. CIV. STAT. ANN. art. 4512b, Hosp. Dist. v. Hughes, 734 S.W.2d§ 1b, creates a privilege for communications 675, 677 (Tex. App.--Fort Worthwith a chiropractor and for the chiropractor's 1987, no writ), and Gulf Coast Re-records similar to the physician-patient privi- gional Blood Center v. Houston, 745lege. S.W.2d 557 (Tex. App.--Fort Worth

4. PODIATRIST-PATIENT COMMU- Susie L. Wadley Research Institute &NICATIONS Blood Bank v. Whittington, 843

TEX. REV. CIV. STAT. ANN. art. 4575d S.W.2d 77 (Tex. App.--Dallas 1992,creates a privilege similar to the physician- orig. proceeding). The Whittingtonpatient privilege for podiatrists. opinion, however, does not address

5. NURSING HOME REPORTSThe Texas Board of Human Services is ! The statute also applies to protect the

authorized to evaluate the quality of care in birthdate of the donor. Tarrantnursing homes, and the information received County Hosp. Dist. v. Curry, 907by the department as a result of its review, as S.W.2d 445, 446 (Tex. 1995).well as the reports, compilations, and analysesdeveloped, are privileged. TEX. HEALTH & ! These statutes do not apply to a den-SAFETY CODE § 242.049. However, the tal patient seeking to discover theprivilege does not extend to reports of the identity of a prior patient who haddepartment involving investigations of abuse allegedly used a "spit cup" prior toand neglect. TEX. HEALTH & SAFETY CODE her. Buchanan v. Mayfield, 925§ 242.049(i). See TEX. HEALTH & SAFETY S.W.2d 135 (Tex. App.--Waco 1996,CODE §§ 242.121 et seq. See also TEX. HUM. orig. proceeding).RES. CODE ANN. § 32.021 (1998 Supp.) re-garding admissibility of department surveys, 7. SOCIAL SECURITY RECORDScomplaints, investigations, and survey reports. 42 U.S.C. § 1306(a) provides that infor-

6. RECORDS OF BLOOD DONORS and Human Services or any of the depart-The medical and donor records of a blood ment's employees should not be disclosed

bank are confidential and may be disclosed except as provided by the Secretary or federalonly under certain circumstances provided by law.

information regarding blood donation under

! These statutes were effective Sep-

1988, no writ), but prior to J.K. &

these statutes.

mation obtained by the Secretary of Health













! Texas law suggests that a claim- Communications relating to the subjectant/patient may invoke the privilege. matter of any civil or criminal dispute made bySee Avila v. U.S. Fidelity & Guar. a participant in an alternative dispute resolu-Co., 551 S.W. 453, 457-58 (Tex. tion procedure is confidential and not subjectCiv. App.--San Antonio 1977, writ to disclosure. TEX. CIV. PRAC. & REM. CODE

ref'd n.r.e.); see also Texas Employ- ANN. § 154.073.ers' Ins. Ass'n v. Marshall, 436S.W.2d 617 (Tex. Civ. App.--E-astland 1969, writ ref'd n.r.e.). Thisissue frequently involves an examina-tion of the claimant by the TexasRehabilitation Commission.

! Other courts have construed theprivilege much more narrowly. SeeGilley v. Travelers Ins. Co., 298F. Supp. 47 (E.D. Tenn. 1969) (hold-ing that a private physician hired fora medical examination is not a "em-ployee" of the department and theprivilege does not apply.

! A party may waive the privilege bydisclosing a significant part of thedoctor's report to the other party'sattorney. Texas Employers' Ins.Ass'n v. Jackson, 719 S.W.2d 245(Tex. App.--El Paso 1986, writ ref'dn.r.e.).

8. MEDICAL QUALITY ASSURANCEREPORTS OF THE DEPARTMENT OFDEFENSE

Records of medical quality assurancecreated by or for the Department of Defenseare privileged under 10 U.S.C. § 1102.

9. STATE BAR DISCIPLINARY PRO-CEEDINGS

Information regarding grievance proce-dures is generally confidential. See TEX.RULES OF DISCIPLINARY PROCEDURE 2.15,TEX. GOV'T CODE ANN. tit. II, subtit. G, app.A-1 (Vernon Supp. 1998).

10. COMMUNICATIONS IN DISPUTERESOLUTION PROCEDURES

D. Constitutional Privileges

1. THE RIGHT AGAINST SELF-INCRIM-INATION

Any witness may invoke the right againstself-incrimination under the Fifth Amendmentto the United States Constitution. A witnessnormally cannot prove an answer is incriminat-ing without answering a question and therebyforfeiting the privilege. Accordingly, actualproof of self-incrimination is unnecessary if itis evident from the question that a responsiveanswer might be incriminating. See Walker v.Packer, 827 S.W.2d 842, 844 n.10 (Tex.1992).

! If the questions do not call for an-swers which on their face tend toincriminate the witness, the witnessmust provide further justificationbefore invoking the privilege.Warford v. Beard, 653 S.W.2d 908,912 (Tex. App.--Amarillo 1983, nowrit).

! The privilege may extend to docu-ments that have a strong personalconnection to the witness such asdocuments written by the witness orunder the witness' supervision. Id.

! TEX. R. EVID. 513 was amendedeffective March 1, 1998 to allow aparty against whom the jury mightdraw an adverse inference from aclaim of privilege to request an in-struction that no inference may bedrawn therefrom. The provisions ofRule 513 that prohibit a comment onthe claim of privilege do not apply ina civil case with respect to a party's



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claim of the privilege against asserted a "journalist privilege" basedself-incrimination in the present on the First Amendment of theproceeding. TEX. R. EVID. 5- United States Constitution and Arti-13(c). cle I, § 8 of the Texas Constitution,

2. PRIVILEGE FOR FREE EXERCISE OF his conversations with an informant,RELIGION although the informant's identity had

In Tilton v. Marshall, 925 S.W.2d 672 already been discovered and the in-(Tex. 1996), Robert Tilton, the pastor of formant had been deposed. TheWorld of Faith Church, sought protection of court noted that neither the Unitedhis personal tithing records in an action by States Supreme Court nor the Texaschurch contributors for fraud and intentional Supreme Court had explicitly recog-infliction of emotional distress. Tilton chal- nized a journalist's privileges, al-lenged the maintenance under those causes of though some intermediate, federal,action on the free exercise of religion clause of and state courts had done so.the First Amendment. It was held that most ofthe causes of action could not be maintained ! The courts that have recognized abecause of the free exercise clause. Accord- journalist's privilege generally relyingly, the court held that documents requested upon Branzburg v. Hayes, 408 U.S.became irrelevant and not subject to discovery. 665, 92 S. Ct. 2646, 33 L. Ed. 2dThe court did not reach the issue of whether 626 (1972). The court in Dolcefinothe free exercise of religion and freedom of found no such support in Branzburgassociation under the First Amendment of the and found it persuasive that theUnited States Constitution shielded those Texas Supreme Court had codifiedrecords from discovery. Id. at 682. See also the Texas Rules of Civil EvidenceDiocese of Galveston-Houston v. Stone, 892 eleven years after the BranzburgS.W.2d 169 (Tex. App.--Houston [14th Dist.] opinion without including any privi-1994, orig. proceeding). lege for journalists. It noted that

3. REPORTER'S PRIVILEGE no privilege except as provided byThe Texas Supreme Court has never the constitution, statute, or rules.

addressed the issue of whether a reporter has Nevertheless, the court expressed noa privilege under the First Amendment to the opinion on the ultimate question ofUnited States Constitution to refuse to testify. whether a privilege exists because itThe Texas Court of Criminal Appeals has found that the trial judge had notrecently issued an opinion that no such privi- abused her discretion.lege exists. Coleman v. State, 966 S.W.2d525, 526 n.5 (Tex. Crim. App. 1998), relying ! The court in Dolcefino seemed criti-upon Healey v. McMeans, 884 S.W.2d 772, cal of Channel Two Television Co. v.775 (Tex. Crim. App. 1994). A qualified Dickerson, 725 S.W.2d 470 (Tex.privilege for reporters, however, seems to App.--Houston [1st Dist.] 1987,have been recognized by the Texas courts in orig. proceeding). In Channel Two,civil cases, although there is some question as the same court of appeals who heldto the existence of the privilege. that a litigant who had issued a broad

! In Dolcefino v. Ray, 902 S.W.2d 163 reporters' notes, outakes, records,(Tex. App.--Houston [1st Dist.] and other documents relating to1995, orig. proceeding), a journalist broadcasts that had been aired con-

to refuse to answer questions about

TEX. R. EVID. 501 declared there is

subpoena duces tecum asking for







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cerning a lawsuit between a liti- ! In Martin v. Khoury, 843 S.W.2dgant and his former business 163 (Tex. App.--Texarkana 1992,partner had failed to show that orig. proceeding), a party in a slip-the information was subject to and-fall case sought to discover thedisclosure after the television membership lists and names and ad-station asserted a qualified privi- dresses of contributors to East Tex-lege. The Channel Two court ans Against Lawsuit Abuse claimingheld that once the privilege is that the documents were relevant toasserted, the party seeking dis- the subject matter of their voir dire.closure of the reporter's investi- The court found that there was notgative materials and notes must such a controlling justification thatdemonstrate that there is a com- would support an infringement uponpelling and overriding need for First Amendment rights of the orga-the information. At a minimum, nization or the individuals whosethe litigant must make a clear names were sought.and specific showing that theinformation sought is (1) highlymaterial and relevant,(2) necessary or critical to themaintenance of the claim, and(3) not obtainable from othersources. Channel Two was fol-lowed by the San Antonio Courtof Appeals in Dallas MorningNews Co. v. Garcia, 822S.W.2d 675 (Tex. App.--SanAntonio 1991, orig. proceed-ing).

4. MEMBERSHIP LISTSThe First Amendment associational rights

privilege protects against disclosure of anorganization's membership list unless thematerials are necessary to protect an overrid-ing and compelling state interest. Ex ParteLowe, 887 S.W.2d 1 (Tex. 1994) (holding thatthe Grand Dragon of Ku Klux Klan could notbe held in contempt for refusal to producemembership list).

! Under a similar analysis, the TexasSupreme Court held that a court maynot order disclosure of identity ofpersons sharing particular religiousbeliefs. Tilton v. Moye, 869 S.W.2d955, 956 (Tex. 1994).

E. Miscellaneous PrivilegeThe Texas Supreme Court has outlined a

qualified privilege from discovery for materialsthat are privileged under laws of a foreigncountry in Volkswagen A.G. v. Valdez, 909S.W.2d 900 (Tex. 1995). The court reliedupon the RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAW and did not mention theTexas Rules of Evidence. The court balancedthe interest of the Texas court against theinterests of the foreign sovereign, applying fivefactors: (1) the importance to the litigation ofthe information, (2) the degree of specificity ofthe request, (3) whether the information origi-nated in the United States, (4) the availabilityof alternative means of securing the informa-tion, and (5) the extent that non-compliancewould undermine the interest of the UnitedStates, together with the extent that compli-ance would undermine the interest of thecountry where the information was located.Id. at 902-03. Applying these factors, thecourt held that a corporate telephone bookprotected by the German Federal Data Protec-tion Act was not discoverable.

III. WAIVER OF PRIVILEGES

A. GenerallyA privilege conferred by the Texas Rules

of Evidence is waived if (1) the person or apredecessor of the person, while a holder of










the privilege, voluntarily discloses or consents Proposed Rule 193.3(d) gives someto disclosure of any significant part of the protection from inadvertent disclosure ofprivileged matter unless the disclosure itself is privileged material. Under the proposed rule,privileged, or (2) the person or representative a party who produces material informationof a person calls a person to whom privileged without intending to waive a claim of privilegecommunication has been made to testify as to does not waive that claim if a response isthe person's character or character trait to the amended identifying the material or informa-extent that the communications are relevant to tion produced and stating the privilege issuch character or character trait. TEX. R. asserted within ten (10) days after discoveryEVID. 511. See Jordan v. Fourth Court of that the production was made. When theAppeals, 701 S.W.2d 644 (Tex. 1985). amended response is made, the requesting

! If a significant portion of a privileged rial or information and any copies pending anyitem is voluntarily disclosed, the ruling by the court on the claim of privilege.privilege as to the entire item may be The provision can be used in complex cases towaived. See, e.g., Terrell State reduce costs and risks of large documentHosp. v. Ashworth, 794 S.W.2d 937 productions. The rule focuses on the intent to(Tex. App.--Dallas 1990, orig. pro- waive the privilege rather than the intent toceeding). produce the material information. Thus, a

! Where an attorney voluntarily testi- before producing them does not waive thefied about a grievance that the cli- claim of privilege, and the rule is thus broaderent/plaintiff had filed, it was a disclo- than Rule 511, specifically overruling Granadasure of a significant part of a privi- Corp. v. First Court of Appeals, 844 S.W.2dleged matter which waived his right 223 (Tex. 1992), to the extent of any conflict.to confidentiality of such information. See comment 4.Accordingly, evidence of a privatereprimand became admissible. B- 3. OFFENSIVE USE DOCTRINEerger v. Lang, No. 01-96-01184-CV, A party seeking affirmative relief may not1998 WL 352726 (Tex. App.--Hous- claim a privilege to deny an opponent evidenceton [1st Dist.] June 25, 1998). that would refute the claim. If a party seeks

B. Non-voluntary DisclosureUnder the Texas Rules of Evidence and obtaining evidence which might potentially

the Proposed Rules, certain non-voluntary mitigate or defeat the claim, a court may deemdisclosures of privileged information do not that the party has waived the privilege. Re-constitute a waiver. public Ins. Co. v. Davis, 856 S.W.2d 158

1. PRIVILEGED MATTER DISCLOSED insberg v. Fifth Court of Appeals, 686 S.W.2dUNDER COMPULSION OR WITHOUT 105 (Tex. 1985). To find a waiver of a privi-OPPORTUNITY TO CLAIM PRIVILEGE lege through offensive use, the party seeking

A claim of privilege is not defeated by a discovery must show: (a) the party assertingdisclosure which was (a) compelled errone- the privilege is seeking affirmative relief;ously or (b) made without opportunity to claim (b) the privileged information sought must bethe privilege. TEX. R. EVID. 512. such that, if believed by the trier of fact, it

2. INADVERTENT PRODUCTION minative of the asserted cause of action; and

party must promptly return the specified mate-

party who fails to diligently screen documents

affirmative relief and then tries to hide behinda privilege to prevent the opposing party from

(Tex. 1993); Owens-Corning Fiberglas v.Caldwell, 818 S.W.2d 749 (Tex. 1991); G-

would in all probability be outcome deter-






(c) disclosure of the confidential communica- stitute a waiver of privilege. Texastion is the only means by which the aggrieved Dep't of Public Safety Officers Ass'nparty can obtain the evidence. Republic Ins. v. Denton, 897 S.W.2d 757, 760Co. v. Davis, 856 S.W.2d at 163. (Tex. 1995).

! Where a petition seeks monetary ! The outcome determinative elementdamages, a party is seeking "affir- is met when documents sought bearmative relief." Marshall v. Ryder a substantial relationship upon theSys., Inc., 928 S.W.2d 190, 195 causation element in a plaintiff's(Tex. App.--Houston [14th Dist.] claim. See, e.g., Hyundai Motor Co.1996, writ denied). v. Chandler, 882 S.W.2d 606, 620

! A declaratory judgment counterclaim writ denied).does not necessarily constitute affir-mative relief nor did reliance by a ! When the plaintiff is the only persondefendant on privileged information with any knowledge about the factsto rebut the plaintiff's case. Mara- of the case, there are no alternativethon Oil Co. v. Moye, 893 S.W.2d sources of information and the third585, 590 (Tex. App.--Dallas 1994, element is met. Marshall v. Ryderorig. proceeding). Sys., Inc., 928 S.W.2d at 195.

! In Valero Energy Corp. v. M.W. The offensive use doctrine has been ap-Kellogg Constr. Co., 868 S.W.2d plied to a number of privileges, including:252 (Tex. App.--San Antonio 1993,writ denied), it was held that the ! the attorney-client privilege, Republicattorney-client privilege was waived Ins. Co. v. Davis, supra; andby a defendant who asserted affirma- Westheimer v. Tennant, 831 S.W.2dtive defenses of unconscionability, 880, 883-84 (Tex. App.--Houstonfraud, duress, and adhesion, and [14th Dist.] 1992, orig. proceeding)supported those defenses with an (holding that a client suing an ac-affidavit of its attorney. By electing countant for malpractice in connec-to stand firmly on the attorney-client tion with advice on failed tax shelter,privilege, the defendant abandoned waived attorney-client privilege as tothe affirmative defenses. Id. at 256. attorney who had given advice to

! An insurer's assertion of a reasonablebasis to deny a compensation claim ! attorney-work product, Owens-was not an affirmative defense but Corning Fiberglas Corp. v. Caldwell,merely rebutted a bad faith action. supra; andWhere the insurer did not intend torely on the attorney's testimony, the ! the privilege against self-incrimina-privilege was not waived. National tion, Texas Dep't of Public SafetyUnion Fire Ins. Co. v. Valdez, 863 Officers Ass'n v. Denton, supra.S.W.2d 458, 461-62 (Tex. 1993).

! Not all of the privileged information defeat the consulting expert privilege.must be outcome determinative to In Hardesty v. Douglas, 894 S.W.2dsatisfy the second element and con- 548, 551 (Tex. App.--Waco 1995,

(Tex. App.--Corpus Christi 1994,

client on same issue);

! The offensive use doctrine can also

















orig. proceeding), the court held fying waives both the attorney-clientthat the party's designation of a and work product privileges. City ofdoctor as a consulting expert Dennison v. Grisham, 716 S.W.2dafter having him give an affidavit 121, 123 (Tex. App.--Dallas 1986,in opposition to a summary orig. proceeding). In the Grishamjudgment motion was offensive case, the witness was reviewing doc-and unacceptable conduct. uments while testifying during a de-

! Courts have also construed hiring anexpert previously designated by an- ! A party making an Edmondson orother party as a testifying expert and Batson challenge has the right tore-designating him as a consulting examine the voir dire notes of theexpert to violate the policy behind opposing attorney when the attorneythe discovery rules. Harnischfeger relies upon those notes while givingCorp. v. Stone, 814 S.W.2d 263, 265 testimony during an Edmondson(Tex. App.--Houston [14th Dist.] hearing. Absent such reliance, how-1991, no writ). ever, the voir dire notes are privi-

! A party may not obtain an adver- may not examine them. Goode v.sary's testifying expert by settlement Shoukfeh, 943 S.W.2d 441, 449and re-designate them as a consulting (Tex. 1997).only expert to avoid discovery.Tom L. Scott, Inc. v. McIlhany, 798S.W.2d 556 (Tex. 1990).

4. MATERIALS FURNISHED TO EX- The proposed discovery rules make signif-PERT icant changes in the manner in which privileges

Proposed Rule 192.3(e)(6) lays to rest any are asserted. See Proposed Rule 193.argument that documents given to a testifyingexpert retain a privileged character. The ruleprovides that all documents, tangible things, A party should no longer object to areports, models, or data compilations that have request for written discovery on the groundsbeen provided to, reviewed by, or prepared by that it calls for production of privileged mate-or for the expert in anticipation of a testifying rial or information. Instead, the party shouldexpert's testimony are discoverable. follow the procedures of Rule 193.3. An

5. WRITING USED TO REFRESH MEM- must still comply with Rule 193.3 when theORY error is pointed out. Rule 193.2(f).

Under TEX. R. EVID. 612, a party isgenerally entitled to have a writing producedthat a witness used to refresh his memory for When a party claims that material infor-the purpose of testifying either while testifying mation responsive to written discovery isor before testifying. A balancing test is applied privileged, that party may withhold the privi-if the witness reviewed the writing before leged material information. The party claimingtestifying. the privilege must state in the response or a

! The use of a writing to refresh the material responsive to the request has beenmemory of a witness while he is testi- withheld, (2) the request to which the informa-

position.

leged work product and the movant

IV. ASSERTING A PRIVILEGE

A. Objection

objection does not waive the privilege, but one

B. Withholding Privileged Information

separate document that (1) information or






99999XCL.WP5

tion or material relates, and (3) the privilege or ing, or at such other reasonable time as theprivileges asserted. Rule 193.3(a). court permits. If the court determines that an

C. Describing Withheld InformationAfter receiving a response indicating that must be segregated and produced to the court

material has been withheld, the party seeking in a sealed wrapper within a reasonable timediscovery may request the withholding party to following the hearing. Proposed Rule 1-identify the information withheld. The party 93.4(a).asserting the privilege must then serve a re-sponse within fifteen (15) days that: (-1) describes the information or materials The responding party has no further dutywithheld, without revealing the privileged to respond if the court sustains the claim ofinformation itself or otherwise waiving the privilege. If it is overruled, the respondingprivilege that enables other parties to assess party must produce the requested informationthe applicability of the privilege, and (- within thirty (30) days after the court's ruling2) asserts a specific privilege for each item or or such other time as the court orders. Pro-group of items withheld. The party must posed Rule 193.4(b).amend or supplement the response if additionalprivileged information or material is foundsubsequent to the initial response. See com-ment 3.

D. ExemptionA party may withhold a privileged com- it, but a party may not use at any hearing or

munication to and from a lawyer or lawyer's trial the information withheld without timelyrepresentative or a privileged document of a amending or supplementing the party's re-lawyer or lawyer's representative that (1) was sponse to that discovery. Proposed Rulecreated from or made from the point at which 193.4(c).a party consults a lawyer with a view towardobtaining professional legal services from thelawyer in the prosecution or defense of a Texas law on privileges continues tospecific claim in the litigation in which discov- evolve. The attorney-client privilege has beenery was requested, and (2) concerning the extended by the recent amendments to thelitigation in which the discovery is requested. Texas Rules of Evidence, and the proposedA party need not comply with the procedures Texas Rules of Civil Procedure will simplifyin parts B and C above for such communica- the procedure for determining privileges.tions. Proposed Rule 193.3(a).

E. HearingAny party may at any reasonable time

request a hearing on an objection or claim ofprivilege. The party making the objection orasserting the privilege must present any evi-dence necessary to support the objection orprivilege. Like the former rule, this evidencemay be presented at the hearing or by affidavitserved at least seven (7) days before the hear-

in camera review or some of all of the re-quested discovery is necessary, the information

F. Ruling

G. Use of Information If No RulingA party is not required to request a ruling

on the party's assertion of privilege to preserve

V. CONCLUSION