CHAPTER 5 - 5-4 Privilege Objections and Assertions

• Jurisdiction: United States

5-4 Privilege Objections and Assertions

5-4:1 In General

Discovery is not permitted as to privileged matters.¹¹⁴ The reference in the discovery rules to privilege is to evidentiary privilege. A privilege's scope during the discovery stage is the same as its scope at trial.

Privilege, however, is not a proper objection to a written-discovery request. Texas Rule 193.2(f) provides that "[a] party should not object to a request for written discovery on the grounds that it calls for production of material that is privileged but should instead comply with [Texas] Rule 193.3."¹¹⁵ Texas Rule 193.3(a), in turn, requires a responding party, who withholds privileged information or material, to make a withholding statement (1) advising that information or material "responsive to the request or required disclosure" is being withheld as privileged, (2) identifying the specific privilege(s) asserted, and (3) identifying the individual requests or required disclosures to which the withheld information or material relates.¹¹⁶ Texas Rule 193.3 "governs the presentation of all privileges[,] including work product."¹¹⁷ The withholding statement required under Texas Rule 193.3 may be in the original discovery "response (or an amended or supplemented response) or in a separate document[.]"¹¹⁸

A failure to follow Texas Rule 193.3's procedure, however, does not waive privilege.¹¹⁹ Rather, a privilege objection is sufficient to preserve the privilege claim if the "error" is not pointed out.¹²⁰ But once the error is pointed out, the responding party must assert privilege in accordance with Rule 193.3 or waive it.¹²¹

Significantly, a withholding statement is required only when the responding party is answering the discovery request, in whole or in part. If an objection is interposed to the entire request (e.g., the request is overly broad, unduly burdensome, vague, ambiguous, or unreasonably cumulative or duplicative of other discovery) and the responding party is refusing to comply with any part of it, a withholding statement is unnecessary.¹²² Similarly, if the responding party objects only to part of the request, it must provide a withholding statement only for that portion of the request for which it is complying. If the trial court later overrules the objection and orders a response, the responding party, in connection with its response, must make a withholding statement for any responsive information or material withheld as privileged.¹²³

A failure to assert a privilege with respect to responsive information or material within the time allowed for the response should result in the privilege's waiver unless the responding party establishes that there was good cause for the failure under Texas Rule 193.2(e) or the objection was either inapplicable or unknown after reasonable inquiry when the response was served under Texas Rule 193.2(d).¹²⁴

After receiving the withholding statement, a requesting party desiring to pursue information or documents to which a privilege has been claimed "may serve a written request that the withholding party identify the information and material withheld."¹²⁵ The responding party, within fifteen days after receiving the request, must serve a response—commonly called a privilege log—that "(1) describes the information or materials withheld that, without revealing the privileged information itself or otherwise waiving the privilege, enables other parties to assess the applicability of the privilege, and (2) asserts a specific privilege for each item or group of items withheld."¹²⁶ Even if a withholding party has not asserted privilege properly under Texas Rule 193.3(a), the requesting party still should request a privilege log before challenging the privilege assertions.¹²⁷

Although Texas Rule 193.3 only generally identifies the information that must be in a privilege log, it is clear that such a log must set forth the privilege asserted and provide sufficient information about the allegedly privileged material or information to allow the trial court and requesting party to assess the privilege assertion's validity.¹²⁸ For documents, a privilege log ordinarily is sufficient if it provides the document's Bates number, if any; its author(s); addressee(s) and other recipients; its date; its type or nature (e.g., letter, email, memorandum, etc.), the privilege asserted; and the document's general subject matter (unless doing so would waive the privilege).¹²⁹ Because there is no presumption that a person identified on a privilege log properly received the privileged material or information,¹³⁰ the log should identity which persons are lawyers, lawyer representatives, clients, or client representatives subject to the privilege asserted and provide sufficient information about the identified persons to allow the court and requesting party to assess the privilege's assertion.

5-4:2 Exemption for Litigation Material

Texas Rule 193.3(c) provides that a responding party need not make a withholding statement or include on a privilege log "a privileged communication to or from a lawyer or lawyer's representative or a privileged document of a lawyer or lawyer's representative (1) created or made from the point at which a party consults a lawyer with a view to obtaining professional legal services from the lawyer in the prosecution or defense of a specific claim in the litigation in which discovery is requested, and (2) concerning the litigation in which the discovery is requested."¹³¹

As evidenced by its plain language, this exemption does not apply to communications that predate the lawsuit and that were not created or made for the purpose of obtaining legal services in it.¹³² Moreover, it does not encompass the work product of a party's non-lawyer representatives in the litigation at hand.¹³³ Although Texas Rule 193.3(c) does not define "lawyer's representative," the term is used in Texas Rule of Evidence 503, which governs the attorney-client privilege and defines "lawyer's representative" as: "(A) one employed by the lawyer to assist the lawyer in the rendition of professional legal services; or (B) an accountant who is reasonably necessary for the lawyer's rendition of professional legal services."¹³⁴ There is no logical reason why this definition should not apply to "lawyer's representative" as used in Texas Rule 193.3(c).

Because Texas Rule 193.3(c) requires a document to be that "of the lawyer or the lawyer's representative," it clearly does not apply to a document that is simply given to the lawyer or a lawyer's representative by the client. This is because "a document is not privileged simply because it is contained in an attorney's files. There is no specific privilege . . . for 'documents in an attorney's files.' Thus, a party may not cloak a document with the attorney-client privilege simply by forwarding it to his or her attorney."¹³⁵

Finally, Texas Rule 193.3(c)'s exemption "does not prohibit a party from specifically requesting the material or information [that does not have to be logged] if the party has a good faith basis for asserting that it is discoverable."¹³⁶

5-4:3 Inadvertent Production

Texas Rule 193.3(d) is the "snap-back" provision, which allows a party to recover inadvertently produced privileged information or documents.¹³⁷ Under it, a party that produces privileged information or material, in response to a written-discovery request, without intending to waive privilege, does not do so, if it amends the discovery response with ten days after discovering the information's or material's production.¹³⁸ The ten-day period allowed for an amended response does not run from the production of the material or information but rather from the responding party's actual awareness of its mistake and may be shortened by the trial court.¹³⁹

Comment 4 to the 1999 change to Texas Rule 193 explains that "[t]he focus is on the intent to waive the privilege, not the intent to produce the material or information. A party who fails to diligently screen documents before producing them does not waive a claim of privilege."¹⁴⁰ However, a court might find that a responding party who intentionally fails to screen its documents for privilege at all intended to produce privileged ones.¹⁴¹ Of course, a prudent attorney should carefully review his or her client's documents to ensure that privileged material is not produced because Texas Rule 193.3(d) "does not specifically restrict the use of the information by the recipient party" before it is snapped-back.¹⁴² Thus, regaining possession of the privileged document or information might not undo the damage resulting from its production in the first instance.

To avoid last-minute snap-back privilege assertions at trial in a case filed before January 1, 2021, the requesting party "may identify prior to trial the documents intended to be offered, thereby triggering the [10-day period for the responding party] to assert any overlooked privilege. . . . A trial court may also order this procedure" on its own initiative.¹⁴³ In addition, Texas Rule 194.4 now requires the parties in cases filed on or after January 1, 2021, to "promptly file the following information [30 days before trial] about the evidence that it may present at trial other than solely for impeachment": . . . "an identification of each document or other exhibits, including summaries of other evidence—separately identifying those items the party expects to offer and those it may offer if the need arises."¹⁴⁴ Accordingly, the filing of the trial exhibit list will trigger the 10-day period to snap-back any inadvertently produced material.

Texas Rule 193.3(d) allows parties to retrieve privileged information or documents obtained from an opponent from another source that does not have the right to waive the privilege.¹⁴⁵ It generally does not allow parties to retrieve privileged information or materials inadvertently produced to either a testifying expert or a discoverable consulting expert because a party is...