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Click here for the full text of this decision FACTS:When Mona Palmer notified Christus Spohn Hospital Kleberg of her intent to file a health-care liability claim arising out of her daughter’s death, the hospital’s internal investigator, Sandra Northcutt, conducted an investigation. That investigation generated a number of documents, labeled “CONFIDENTIAL COMMUNICATION PREPARED IN ANTICIPATION OF LITIGATION.” The Northcutt documents included Northcutt’s memoranda summarizing her interviews with hospital employees and her correspondence to and from hospital counsel. A paralegal newly employed by the hospital’s counsel sent the Northcutt documents to Nurse Kendra Menzies, the hospital’s only expert witness on standard-of-care issues. According to the hospital’s counsel, the paralegal had recently moved to Texas from California, where all materials forwarded to an expert witness remain confidential. She assumed the same rule applied in Texas. Menzies’ expert report on Brandi Lee Palmer listed the documents she reviewed in forming her opinion; the Northcutt documents did not appear on that list. Palmer’s attorney sought to depose Menzies and issued a subpoena duces tecum requesting all documents furnished to and reviewed by Menzies in connection with her consultation in the suit. Among the materials Menzies brought to the deposition were the Northcutt documents. This was the first time that the hospital’s and Palmer’s counsel learned the privileged documents had been forwarded to Menzies. When questioned about the documents that had been transmitted to her, Menzies testified, “I didn’t read every bit. But, yes, I glanced through everything in the box.” The Hospital filed an “Objection, Assertion of Privilege, and Motion to Return Privileged Documents” pursuant to Rule 193.3(d) of the Texas Rules of Civil Procedure, known as the snapback provision, seeking to recover the documents mistakenly produced to Menzies. At the hearing on this issue, Menzies testified by affidavit that she did not read the documents but rather glanced at them merely to identify what they were, and upon determining that they were not relevant to her needs, tossed them back in the box. The trial court overruled the hospital’s claim of privilege, stating it was “unclear that [Menzies] did not see certain specified documents.” The 13th Court of Appeals denied the hospital’s request for mandamus relief. HOLDING:The Texas Supreme Court denied the hospital’s petition for writ of mandamus without prejudice to any right the hospital might have to designate another testifying expert and recover the privileged documents. The hospital, the court stated, claimed that it created the Northcutt documents in connection with the hospital’s internal investigation conducted in anticipation of litigation; therefore, the work-product privilege shielded the documents from discovery. According to the hospital, the privilege was not lost when it transmitted the documents to Menzies, because waiver can only occur when privileged documents are voluntarily and knowingly disclosed, not when disclosure is inadvertent. Because it properly invoked Rule 193.3(d)’s snapback provision, the hospital argued that the trial court erred in determining that the privilege was waived. Palmer contended Rule 193.3(d)’s snapback provision does not apply to information that Rule 192.3 makes discoverable once it is provided to a testifying expert. Under Rule 192.3, a party may discover the following information regarding a testifying expert: 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. After reviewing the competing interests served by Rule 192.3 and the snapback provision of Rule 193.3(d), the court concluded that Rule 192.3 and a related rule trumped the snapback provision so long as the expert in question intends to testify at trial despite the inadvertent document production. The plain language of Rule 192.3, the court stated, made it immaterial whether Menzies reviewed the Northcutt documents; they were discoverable, because they were provided to her. Under these circumstances, the court held that the trial court did not abuse its discretion in denying the request of the hospital, which continued to rely upon Menzies as its testifying expert, for return of the documents. But the hospital, the court stated, is not without a remedy. An attorney, the court stated, who discovers that privileged documents have been inadvertently provided to a testifying expert may presumably withdraw the expert’s designation and name another. OPINION:O’Neill, J., delivered the opinion of the court.

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