Most courts follow a “bright-line” approach to documents provided by litigants to their testifying experts — making all such documents fair game for discovery. How does such a court balance this principle with a separate rule entitling litigants to retrieve unintentionally produced protected documents?
In In re Christus Spohn Hospital Kleberg, 222 S.W.3d 434 (Tex. 2007), a paralegal working for defendant hospital sent privileged documents to the hospital’s testifying expert. Under a Texas rule, this renders the documents discoverable. Interestingly, the paralegal had recently moved to Texas from California, and had assumed that Texas followed the same rule as California (which the paralegal understood to protect privileged documents shared with an expert). The court also noted that another Texas rule contains what is called a “snap-back” provision, allowing a litigant to retrieve protected documents that it unintentionally disclosed. The hospital relied on this rule in seeking to prevent discovery of the documents the paralegal had sent to the testifying expert. The Texas Supreme Court found that the testifying expert rule trumped the snap-back rule, and held that the hospital would have to produce the documents if it used that testifying expert.
Applying both common law and rules-based privilege principles often requires balancing competing interests and seemingly irreconcilable principles.