In Re Christus Spohn Hospital Kleberg
222 S.W.3d 434, 2007 Tex. LEXIS 362, 50 Tex. Sup. Ct. J. 682 (2007)
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Rule of Law:
Under Texas rules of civil procedure, the requirement to disclose all materials provided to a testifying expert (Rule 192.3(e)(6)) overrides the "snap-back" provision (Rule 193.3(d)) for inadvertently produced privileged documents, so long as the party continues to designate that individual as a testifying expert. Once privileged documents are provided to a testifying expert, the work-product privilege is waived, and the documents cannot be retrieved unless the expert's designation is withdrawn.
Facts:
- After Mona Palmer notified Christus Spohn Hospital Kleberg of a potential health care liability claim regarding her daughter's death, the Hospital initiated an internal investigation.
- The Hospital's investigator, Sandra Northcutt, created several documents summarizing employee interviews and correspondence with counsel, which were labeled "CONFIDENTIAL COMMUNICATION PREPARED IN ANTICIPATION OF LITIGATION."
- A paralegal for the Hospital’s counsel, who was new to Texas law, mistakenly sent these privileged "Northcutt documents" to the Hospital's designated testifying expert, Nurse Kendra Menzies.
- The Northcutt documents were not listed in Nurse Menzies's expert report as materials she had reviewed in forming her opinions.
- At her deposition, Nurse Menzies brought the Northcutt documents with her, at which point counsel for both parties first became aware that she had received them.
- Nurse Menzies testified that she "glanced through everything in the box" to identify the documents but "didn't read every bit."
Procedural Posture:
- During the deposition of Christus Spohn Hospital Kleberg's expert, Mona Palmer's counsel discovered the expert possessed privileged documents.
- The Hospital filed a motion in the trial court to compel the return of the documents under the 'snap-back' provision of Tex. R. Civ. P. 193.3(d).
- The trial court denied the Hospital's motion and overruled its claim of privilege.
- The Hospital (as Relator) filed a petition for a writ of mandamus with the intermediate court of appeals.
- The court of appeals denied the Hospital's request for mandamus relief.
- The Hospital then petitioned the Supreme Court of Texas for mandamus review.
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Issue:
Does the "snap-back" provision of Texas Rule of Civil Procedure 193.3(d), which allows a party to recover inadvertently produced privileged documents, apply when those documents are provided to the party's own testifying expert, making them discoverable under Rule 192.3(e)(6)?
Opinions:
Majority - Justice O’Neill
No. The "snap-back" provision does not apply to privileged documents provided to a party's own testifying expert if that party continues to rely on the expert's designation. The court reasoned that the plain language of the expert discovery rule, Tex. R. Civ. P. 192.3(e)(6), is intentionally broad, making discoverable 'all documents... that have been provided to' a testifying expert. This rule serves the critical policy of allowing effective cross-examination, as the jury must be able to understand all materials that could have influenced an expert's opinion, including those the expert chose to disregard. The court distinguished this from the snap-back rule, which focuses on the intent to waive privilege, by noting that the expert rule, Tex. R. Civ. P. 192.5(c)(1), states such material 'is not work product,' removing its privileged status entirely by virtue of its provision to the expert, irrespective of intent. The producing party's remedy is not to snap back the documents but to withdraw the expert's designation.
Analysis:
This decision establishes a bright-line rule in Texas that prioritizes transparency in expert discovery over the protection of attorney work product. The court resolved the direct conflict between the expert disclosure rule and the inadvertent production 'snap-back' rule in favor of disclosure. This holding significantly raises the stakes for attorneys, demanding extreme diligence in managing communications and document provisions to testifying experts. Any error in providing privileged material can result in a permanent waiver of privilege for those documents, unless the party is willing to undertake the potentially costly and disruptive step of withdrawing and replacing the expert witness.
