Request Which Seeks Assertions of Privilege

Requests for Assertions of Privilege

The focus of this series is the various issues which cause objections during the discovery process, outlined below:

Permissibility of Discovery Tool
Number of Interrogatories
Outside the Scope of Discovery
Lacks Specific Description within Request
Vagueness, Lacks Specificity, or Ambiguity of Request
Overly Broad
Information Obtainable from Another Source
Information Equally Available to the Other Party
Documents Already Produced
Request Creates Unnecessary Burden, Expense, or Made for Purposes of Harassment
Creation of Document not in Existence
Electronic and Magnetic Data
Personal, Constitutional or Property Rights
Inconvenient Time or Place
Information Unknown or Not in Possession of Responding Party
Persons with Knowledge of Relevant Facts
Premature Request
Request Seeks Admission of a Legal Proposition
Seeks Admission of Hearsay
Seeks Admission of a Matter of Opinion
Assertions of Privilege

Request Which Seeks Assertions of Privilege

The goal of the discovery process is for each party to exchange relevant information in order to assess the strengths of the case. In many cases, a thorough discovery process results in an out-of-court settlement. The Texas Rules of Civil Procedure are in place to offer guidance about exactly what information is required and exactly how that information should be shared. While the expectation is that any requested information and evidence will be shared, in some situations, a party may assert a specific privilege, declining to share information as a result of that privilege. Tex. R. Civ. P. 193.3.

When asserting such privilege, simply stating that the requested information is privileged information is not an acceptable response to a request. Instead, the responding party must directly state that he or she is withholding the requested information and identify exactly which privilege or privileges the party asserts. The responding party must also update responses whenever adding a new assertion or new documents. Tex. R. Civ. P. 193.3(a).

After the responding party asserts a privilege, the requesting party may make a written request that the privileged information be identified in a way that allows the requesting party to ascertain the use of that privilege while at the same time not revealing exactly what the privileged information is. Tex. R. Civ. P. 193.3(b).

While Rule 193 governs the assertion of privileges, Rule 192.5 defines exceptions to those assertions, especially when the information is discoverable using Rule 192.3. Such exceptions include trial witnesses, witness statements and their testimonies; experts, exhibits, or information disclosed pretrial; names and contact information for those who may have relevant knowledge of the claim; digital or hard copies of documents and photographs which may be used as evidence; and any work information or product outlined in Texas Rule of Evidence 503(d) as exception to the attorney-client privilege.

In addition to those exceptions, the Texas Supreme Court recently ruled on assertion privileges when redacting privileged information in attorney billing records. Because redaction does not mask legal plans and strategies, the court ruled that any requests for documents related to billing and payment are granted work-product protection, part of the attorney-client privilege. In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 806 (Tex. 2017) (orig. proceeding). The ruling stops short, however, of protecting billing records which result from hiring experts for the case. Attorneys must find a balance between that recent ruling and the case of Rohrmoos Venture v. UTSW DVA Healthcare, LLP, in which attorneys are “strongly encouraged to provide billing records to demonstrate the relevance and importance of attorney fees.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 502 (Tex. 2017).

As important as sharing requested information is to the discovery process, equally important is the right to withhold privileged information when appropriate. The rules surrounding these disclosures are complex, and misunderstanding or misapplying them can have serious consequences. Working with a lawyer skilled in litigation is an important part of navigating the discovery process, ultimately leading to the best possible outcome for the client.

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