Texas’s solutions to inadvertently disclosed privileged material are unworkable. Confidentiality of client information is a bedrock of the legal profession. Nonetheless, some confidential information invariably leaks out. The most common leak occurs when a lawyer inadvertently includes privileged material in boxes of documents produced in response to a legitimate discovery request. After the opposing lawyer finds the “hot documents” in the box, the problems begin. The Texas Supreme Court adopted what amounts to the reasonable precautions test in Granada Corp. v. First Court of Appeals. The cornerstone of the Granada holding is the involuntary nature of the production of the privileged documents, indicated and supported by the fact that efforts made to prevent inadvertent production failed. The court in In re Meador later created a distinction between cases where confidential material is inadvertently produced outside of formal discovery and cases where the material is produced during formal discovery. The holdings in Granada and Meador are further complicated by Texas Rules of Civil Procedure 193. For example, the rule is limited to material produced by “a party.” Thus, it does not cover material produced by a non-party. Also, the rule is expressly limited to production in response to a formal discovery request. Therefore, it is uncertain what rule governs inadvertent production that is not the result of a formal discovery request to a party. It is also uncertain whether Granada and Meador continue to control those situations. Potentially, Texas has two different sets of rules to govern essentially the same problem. In the case of inadvertently released confidential information, Texas has failed to provide a clear solution.
St. Mary's University School of Law
Walter W. Steele Jr.,
Shoot out at the Not-O.K. Corral or Privileged Client Communications - Lost and Found in Texas.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol33/iss4/4
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