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.1. THE SCOPE OF DISCOVERY. May a party obtain discovery of indemnity or ins agreement?

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[A] party may obtain discovery of the existence and contents of any indemnity or insurance agreement under which any person may be liable to satisfy part or all of a judgment rendered in the action or to indemnify or reimburse for payments made to satisfy the judgment. TEX. R. CIV. P. 192.3(f). Remember: discoverability ≠ admissibility.
E.g., in In re Dana Corp., P’s request to produce insurance policies from 1930 to the present was overbroad, where the affidavits indicated that the earliest exposure was in 1945.

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.2. THE SCOPE OF DISCOVERY. What is the Relevance of Policy Limits, Stowers Liability?

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If P makes a reasonable demand for policy limits, and ins. co. d/n accept, then ins. co. liable for judgment in excess of that amount.

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.3. THE SCOPE OF DISCOVERY. A party may discover information beyond an insurance agreement’s existence and contents only if

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the information is otherwise discoverable under our scope of discovery rule. In re Dana Corp. (citing TEX. R. CIV. P. 192.3(a)).
E.g., in In re Dana Corp., trial ct d/n err in ordering D to produce a witness for deposition to prove the contents of ins. policies.

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.4. THE SCOPE OF DISCOVERY. Are Settlement Agreements discoverable?

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The existence and contents of any settlement agreement is discoverable. TEX. R. CIV. P. 192.3(g).
Discoverability is limited by the general discovery relevance standard.
E.g., when a settlement agreement might disclose whether P has already been compensated for his injuries under the “one satisfaction” rule, it is relevant.

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.5. THE SCOPE OF DISCOVERY. Is info about Net Worth discoverable?

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Information about D’s net worth is relevant to the issue of punitive damages and is therefore discoverable. Net worth information is not discoverable when no proper claim to punitive damages has been made. Lunsford v. Morris.
Note: there generally must be a reasonable relationship (9x multiplier max) between actual and punitive damages. The production of tax returns is not relevant to determine net worth. Sears, Roebuck & Co. v. Ramirez.

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.6. THE SCOPE OF DISCOVERY. Can discovery be brought for Information Sought Solely for Impeachment?

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It’s not clear whether discovery can be sought from nonparty witness for impeachment purposes.
Compare Russell v. Young (voluminous financial records of a nonparty medical witness were not discoverable, where the witness’s credibility was not in issue, and where the records did not relate to the subject matter of the suit, and where the records were sought to show bias), with Walker v. Packer (evidence narrowly seeking information regarding potential bias was relevant), and In re Makris (holding Rule 192.3(e)(5) did not overrule Russell’s holding that personal financial records of a nonparty witness are not discoverable to show bias).

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.7. THE SCOPE OF DISCOVERY. How do you Challenge Trial Court’s Discovery Ruling?

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i. Object. The opponent must initially object, or risk waiver.
ii. Motion to Compel. After the opponent objects, the proponent files a motion to compel.
iii. Note: there is no interlocutory appeal from a trial court’s discovery order.
iv. Mandamus Relief. If a reviewing court concludes that a trial court’s discovery order is overbroad, the trial court has abused its discretion, and the order must be vacated if there is no adequate remedy on appeal.
In re CSX Corp. Generally there isn’t an adequate remedy on appeal b/c of the cost of production.

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.8. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Work product comprises:

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(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
TEX. R. CIV. P. 195.2(a).

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.9. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Test. [A]n investigation is conducted in anticipation of litigation . . . when

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i. a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue; and
ii. the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purposes of preparing for such litigation. National Tank Co. v. Brotherton.

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10. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. “Substantial Chance of Litigation” meaning

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This does not refer to any particular statistical probability that litigation will occur; rather it simply means that litigation is more than merely an abstract possibility or unwarranted fear. National Tank Co. v. Brotherton.

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11. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Does an accident trigger the privilege?

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An accident itself may be sufficient to trigger the privilege, but will not always be sufficient. See National Tank Co. v. Brotherton.

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12. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. If a party routinely investigates accidents because of litigation and nonlitigation reasons, the court should determine

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the primary motivating purpose underlying the ordinary business practice. National Tank Co. v. Brotherton.

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13. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Core work product means

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the work product of an attorney or an attorney's representative that contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories, is not discoverable. TEX. R. CIV. P. 195.2(b)(1). Perpetual. Attorney work product is perpetual unless waived.

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14. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Any other work product is discoverable only upon a showing that

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the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means. TEX. R. CIV. P. 195.2(b)(2).

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15. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Is ordinary work product case specific?

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According to pre amendment case law, ordinary work product is case specific. I.e., the privilege ends after the case ends.

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16. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Can u Request for Attorney’s Litigation File?

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Although it is possible that individual documents located in an attorney’s files may be discoverable, a discovery request for an attorney’s “litigation file” is, on its face, an improper invasion of the work product exemption. Nat’l Union Fire Ins. Co. of Pittsburgh v. Valdez. That is, the request is overbroad and not narrowly tailored.

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17. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Even if made or prepared in anticipation of litigation or for trial, the following is not work product protected from discovery:

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(1) information discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and contentions; a. See III.b. People with Knowledge, supra. b. See III.c. Witness Statements, supra. c. See III.d. Expected Witnesses, supra. d. See III.e. Legal Contentions, supra.
(2) trial exhibits ordered disclosed under Rule 166 or Rule 190.4;
(3) the name, address, and telephone number of any potential party or any person with knowledge of relevant facts;
(4) any photograph or electronic image of underlying facts (e.g., a photograph of the accident scene) or a photograph or electronic image of any sort that a party intends to offer into evidence; and
(5) any work product created under circumstances within an exception to the attorney-client privilege in Rule 503(d) of the Rules of Evidence. TEX. R. CIV. P. 195.2(c).

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18. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Expert Witnesses. Consulting Experts vs. Testifying Experts.

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A consulting expert has been informally consulted, retained, or specifically employed by another party in anticipation of litigation or preparation for trial. Axelson, Inc. v. McIlhany (quoting old Rule 166(3)(b)). A testifying expert testifies at trial on the litigant’s behalf.

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19. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Are Consulting Experts Protected?

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The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. TEX. R. CIV. P. 192.3(e).

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20. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. What is the requirement for consulting experts stuff not being discoverable?

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Must be in Anticipation of Litigation. Identities and opinions of experts are nevertheless discoverable if they are not engaged in anticipation of litigation and solely for consultation or if their work product has been reviewed or relied upon by testifying experts. Tom L. Scott, Inc. v. McIlhany; Lindsey v. O’Neill. E.g., in Lindsey v. O’Neill, opinions and mental impressions of D’s ees who had knowledge of subject areas in an upcoming deposition that were not acq’d in anticipation of litigation were subject to discovery.

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21. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Testifying Experts Not Protected. A party may discover the following information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert:

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(1) the expert's name, address, and telephone number;
(2) the subject matter on which a testifying expert will testify;
(3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;
(4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them;
(5) any bias of the witness;
(6) 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 expert's current resume and bibliography. TEX. R. CIV. P. 192.3(e).

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22. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Can there be Dual Capacity witness?

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Some witnesses maintain a dual capacity, possessing firsthand knowledge of relevant facts and serving as consulting only experts.

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23. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Protection of Mental Impressions. The consulting expert exemption protects

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the identity, mental impressions and opinions of consulting only experts; but not the facts.

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24. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Are Factual Knowledge and Opinions Discoverable by an ind who is an expert and active participant?

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The factual knowledge and opinions acquired by an individual who is an expert and an active participant in the events material to the lawsuit are discoverable.

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25. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Employees as Consulting Experts If Employed in the Area effect on being an expert?

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An ee who was employed in the area that becomes the subject of litigation can never qualify as a consulting only expert b/c the emp. was not in anticipation of litigation. E.g., in Axelson, Inc. v. McIlhany, Petroleum Engineer could not be a consulting expert, where he worked on the well before, during and after the explosion.

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26. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. If consulting expert is Not Employed in the Area can they be a consulting expert?

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An ee who was not employed in an area that becomes the subject of litigation and is reassigned specifically to assist the employer in anticipation of litigation arising out of the incident or in preparation for trial may qualify as a “consulting-only” expert.

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27. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. [T]he protection afforded by the consulting expert privilege is intended to be

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only a shield to prevent a litigant from taking undue advantage of his adversary's industry and effort, not a sword to be used to thwart justice or to defeat the salutary objects of discovery. Tom L. Scott, Inc. v. McIlhany.
The primary policy behind discovery is to seek truth so that disputes may be decided by facts that are revealed rather than concealed.
E.g., in Tom L. Scott, Inc. v. McIlhany, redesignation of experts was deemed ineffective, where Ds settled with Ps to gain control of P’s testifying experts so D could redesignate them as consulting experts.

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28. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Privilege Against Self Incrimination. A witness can assert this privilege if

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disclosure would furnish the link in the chain of evidence needed to prosecute the person claiming the privilege.

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29. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. When can litigant claim Right of Association?

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A litigant may claim this privilege to prevent disclosure of its associations.

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30. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Are the PASI and Rt of Association waivable?

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These privileges are waivable. Mandamus relief is available if the privilege is not honored.

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31. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. This attorney-client privilege protects

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confidential communications between lawyer and client made for the purpose of receiving legal advice.

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32. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Corporate Entity. The privilege extends to

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any person “who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.” TEX. R. EVID. 503(a)(2)(B).

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33. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Crime Fraud Exception. The privilege does not apply if

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the “services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” TEX. R. EVID. 503(d)(1).

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34. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Trade Secret Privilege. Trade Secret. A trade secret may consist of

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any formula, pattern, device, or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. Hyde Corp. v. Huffines.

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35. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Courts look to the following factors to determine if information qualifies as a trade secret:

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(1) the extent to which the information is known outside of his business;
(2) the extent to which it is known by employees and others involved in his business;
(3) the extent of the measures taken by him to guard the secrecy of the information;
(4) the value of the information to him and to his competitors;
(5) the amount of effort or money expended by him in developing the information;
(6) the ease or difficulty with which the information could be properly acquired or duplicated by others. In re Bass.

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36. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Analysis Framework. In re Continental Gen. Tire, Inc. Trade Secret. First, the party resisting discovery must establish

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that the information is a trade secret.

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37. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Trade Secret. To make this determination, the court

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conducts an in camera inspection, or reviews an affidavit explaining the information.

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38. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Trade Secret. Necessary for the Adjudication of Claims. The burden then shifts to the

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requesting party to establish that the information is necessary for a fair adjudication of its claims.

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39. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Trade Secret. Disclosure. If the requesting party meets this burden, the trial court should

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ordinarily compel disclosure of the information, subject to an appropriate protective order.

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40. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Trade Secret. In each circumstance, the trial court must weigh

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the degree of the requesting party's need for the information with the potential harm of disclosure to the resisting party.

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41. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. If the privilege-asserter doesn’t think the protective order provides adequate protection, it should seek

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mandamus relief.

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42. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Physician-Patient and Mental Health Information. Is communication btwn patients and physicians and med records protected?

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TEX. R. EVID. 510 generally protects from disclosure confidential communications between patients and physicians and medical records.

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43. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Exception to protection of patient/physician/med records

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When Relevant to a Condition at Issue. Exceptions apply when records sought to be discovered are relevant to a condition at issue relied on as a part of any party’s claim or defense.

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44. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Exception to protection of patient/physician/med records. Does it need to be a party?

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Need Not be a Party. The exception terminates the privilege even though the patient has not personally placed the condition at issue, and even though the patient is not a party to the litigation.

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45. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Exception to protection of patient/physician/med records. Who do cts protect privacy interests?

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Courts often protect privacy interests through a protective order.

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46. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Exception to protection of patient/physician/med records -HIPAA. Covered entities may disclose identifiable personal health information

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(1) in response to a court order, or
(2) if the requester provides “satisfactory assurance”
(a) that the individual whose protected health info is in issue has been notified of the request, and
(b) the party has made reasonable efforts to secure a proper qualified protective order.

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47. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Hospital Committee Privileges. A statutory privilege protects

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documents created by or at the direction of the committee for committee purposes, and documents generated for and by a hospital credentialing committee.

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48. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Hospital Committee Privileges. Who may waive?

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Only a committee may execute a waiver, and the waiver must be in writing. Waiver must be made with an intent to disclose or waive.

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50. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Public Health Statutes. Public health statutes prevent

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disclosure of the identity of persons with communicable diseases and blood donors.

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51. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Lobbying Activities. The Government Code prohibits the public disclosure of a written or otherwise recorded communication from a citizen of Texas to a member of the legislature unless

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either party authorizes disclosure. TEX. GOV’T CODE § 306.004.

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52. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Reporter’s Privilege. The Privilege. Compulsory process may not be used to “compel a journalist to testify regarding or to produce or disclose in an official proceeding:

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(1) any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist; or
(2) the soure of any information, document, or item described by Subdivision (1).” TEX. CIV. PRAC. & REM. CODE § 22.023.

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53. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Overcoming the Reporter's Privilege. The person seeking the protected information may overcome the privilege by

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making a “clear and specific showing” that all reasonable efforts have been exhausted to try to get the information from alternate sources, and that “the interest of the party subpoenaing the information outweighs the public interest in gathering and disseminating of news, including the concerns of the journalist.”
The information must be “essential to the maintenance of a claim or defense of the person seeking the testimony, production or disclosure.” TEX. CIV. PRAC. & REM. CODE § 22.024.

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54. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Public Information Act.

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This statute provides for public access to a wide variety of public information maintained by governmental bodies. See TEX. GOV’T CODE § 552.001, et seq.

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55. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Criminal Investigation Information Privileged?

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Information held by law enforcement agencies and prosecutors relating to their criminal investigations is privileged from discovery in civil actions against the officers or prosecutors. Hobson v. Moore.

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56. PRIVILEGES AND OTHER LIMITS ON DISCOVERY. Electronic Communications Privacy Act. This Act protects internet service providers from

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disclosing emails in certain circumstances.

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57. WAIVER OF PRIVILEGES. A party can waive privileges by:

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(1) failing to claim the privilege;
(2) offensive use; and
(3) inadvertent disclosure.

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58. WAIVER OF PRIVILEGES. Compelled Dislcosure; No Opportunity to Object. A claim of privilege is not defeated by

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a disclosure that was compelled erroneously. The privilege is also not defeated if the disclosure was made without an opportunity to claim the privilege. TEX. R. CIV. P. 512.

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59. WAIVER OF PRIVILEGES. Offensive Use. Elements. A party waives a privilege by offensive use if:

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(1) the party asserting the privilege seeks affirmative relief;
(2) the privileged information, if believed, in all probability would be outcome determinative;
(3) disclosure of the privileged information is the only means by which the aggrieved party may obtain the evidence. Republic Ins. Co. v. Davis.

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60. WAIVER OF PRIVILEGES. Offensive use. Policy. An evidentiary privilege is intended to be a “shield” but not a “sword.” It’s unacceptable for a party to

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create a situation in which the privileged information is relevant, but then refuse to disclose that information, claiming privilege.

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61. WAIVER OF PRIVILEGES. Inadvertent Production. Snap-Back Provision. TEX. R. CIV. P. 193.3(d). Amended Response. A party who produces material or information “without intending to waive a claim of privilege” does not waive

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the privilege claim if the producing party amends the response, identifies the material or information produced, and states the privilege asserted.

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62. WAIVER OF PRIVILEGES. Inadvertent Production. Snap-Back Provision. The amended response must be served within

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10 days, or a shorter time if ordered by the court, after the producing party actually discovers the inadvertent production.

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63. WAIVER OF PRIVILEGES. Snap-Back. Meaning?

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If the producing party amends the response to assert a privilege, the requesting party must promptly return the specified information or material and any copies, subject to any ruling by the court denying the privilege claim.

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64. WAIVER OF PRIVILEGES. Production of Documents to Testifying Experts discoverable?

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Privileged documents disclosed to a testifying expert are discoverable, and not work product. See III.d aboveIV.b.i.2 Testifying Experts Not Protected, supra. The snap-back provision does not apply. See In re Christus Spohn Hospital.

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65. WAIVER OF PRIVILEGES. May Redesignate. An attorney who discovers that privileged documents have been inadvertently provided to a testifying expert may presumably withdraw the expert’s designation and name another. . . .

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If leave of court is necessary for an alternative designation—when, for example, the expert designation deadline has passed—courts should carefully weigh the alternatives available to prevent what may be akin to a death-penalty sanction for the party forced to trial without a necessary expert.

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66. WAIVER OF PRIVILEGES. Attorney Communications to Testifying Experts. Who are they communicated? Must it be disclosed?

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Attorneys communicate orally with their experts. Testifying experts could be required to disclose this information as “facts [made] known to the expert that relate to or form the basis of the expert’s mental impressions and opinions.” TEX. R. CIV. P. 192.3(e)(3).