Supreme Court of Texas Affirms Supremacy of Attorney-Client Privilege in Expert Discovery

Suppose a manufacturer wants to designate one of its employees to provide expert testimony about the design process in a products liability case. Perhaps a bank wants one of its loan officers to give an expert opinion on lending practices. There can be many benefits to using a qualified expert who is already in-house, including that the employee-expert may be more familiar with the subject-matter of the litigation than a retained expert and is already on the payroll, eliminating the need to pay costly hourly fees. But can the company’s trial counsel help an employee-expert prepare for his or her testimony in the same way that they would for any other expert witness? Or will doing so risk waiving the attorney-client privilege? In federal court, the current discovery rules expressly allow for the withholding of expert materials “otherwise discoverable” on the basis of privilege. In Texas state courts, the answer was less clear until last month’s decision in the case of In re City of Dickinson.