work product privilege in Texas

2017The purpose of the work product doctrine is to “preserve[] the rights of attorneys to thoroughly prepare cases for trial and to investigate both favorable and unfavorable aspects of their cases, while preventing attorneys from taking advantage of their opposing counsel’s efforts.” In re Baytown Nissan Inc., 451 S.W.3d 140, 147 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding); see Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 750 (Tex. 1991) (orig. proceeding) (“The primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of

2017The purpose of the work product doctrine is to “preserve[] the rights of attorneys to thoroughly prepare cases for trial and to investigate both favorable and unfavorable aspects of their cases, while preventing attorneys from taking advantage of their opposing counsel’s efforts.” In re Baytown Nissan Inc., 451 S.W.3d 140, 147 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding); see Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 750 (Tex. 1991) (orig. proceeding) (“The primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of

2021App. 2006) (“The attorney work-product doctrine, while not a true evidentiary privilege, belongs to and protects the attorney.”); see also United States v. Nobles, 422 U.S. 225 238 , 95 S.Ct. 2160 , 45 L.Ed.2d 141 (1975) (noting “[a]t its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which [the attorney] can analyze and prepare his client’s case”). 16 Pope, 207 S.W.3d at 357–58 (“[The work-product doctrine’s] purpose is to stimulate the production of information for trials, and it rewards an attorney’s creative efforts by givi

2021App. 2006) (“The attorney work-product doctrine, while not a true evidentiary privilege, belongs to and protects the attorney.”); see also United States v. Nobles, 422 U.S. 225 238 , 95 S.Ct. 2160 , 45 L.Ed.2d 141 (1975) (noting “[a]t its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which [the attorney] can analyze and prepare his client’s case”). 16 Pope, 207 S.W.3d at 357–58 (“[The work-product doctrine’s] purpose is to stimulate the production of information for trials, and it rewards an attorney’s creative efforts by givi

2006See United States v. Nobles, 422 U.S. 225, 238 , 95 S.Ct. 2160 , 45 L.Ed.2d 141 (1975) (stating that "[a]t its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which [the attorney] can analyze and prepare his client’s case”); Washington v. State, 822 S.W.2d 110, 115-16 (Tex.App.-Waco 1991) (explaining that "the work-product doctrine is designed for the benefit of the attorney”), rev'd on other grounds, 856 S.W.2d 184 (Tex.Crim.App.1993). .

2006Id.; see also Austin v. State, 934 S.W.2d 672, 673 (Tex.Crim.App.1996) (stating that the purpose of the privilege is to promote communications by protecting against the fear that confidences will later be revealed). [10] See United States v. Nobles, 422 U.S. 225, 238 , 95 S.Ct. 2160 , 45 L.Ed.2d 141 (1975) (stating that "[a]t its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which [the attorney] can analyze and prepare his client's case"); Washington v. State, 822 S.W.2d 110, 115-16 (Tex.App.-Waco 1991) (explaining that "the w

2014Under the unique circumstances of this case, we conclude that the trial court’s order did not constitute “discovery.” 2) Work Product “The work-product doctrine is designed for the benefit of the lawyer by protecting the lawyer from being compelled to disclose ‘the fruits of his labor to his adversary.’” Carmona v. 2 This opinion discusses the law of discovery as it existed prior to January 1, 2014, when the Michael Morton Act became effective and significantly changed discovery procedure. -4- 04-13-00382-CR State, 941 S.W.2d 949, 953 (Tex. Crim.

2012Herbert v. State Page 7 The work-product doctrine is designed for the benefit of the lawyer by protecting the lawyer from being compelled to disclose "the fruits of his labor to his adversary." Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim.

2017A party satisfies the “anticipation of litigation” test when the party demonstrates that “a reasonable person would have concluded from the totality of the circumstances that there was a substantial chance that litigation would ensue and the party asserting the work product privilege subjectively believed in good faith that there was a substantial chance that litigation would ensue.” Id.; see Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193, 204 (Tex. 1993) (orig. proceeding).

2017In determining whether communications were made “in anticipation of litigation” for purposes of applying the work product privilege, courts consider not only whether a reasonable person would have concluded from the totality of the circumstances that there was a substantial chance that litigation would ensue, but also whether “the party invoking the privilege believes in good faith that there is a substantial chance that litigation will ensue.” Brotherton, 851 S.W.2d at 204 (emphasis added); In re Baytown Nissan, 451 S.W.3d at 148 .

2026“The designation of a potential expert witness under article 39.14(b) is an act similar to crossing the Rubicon in that it may waive many of the protections otherwise provided by the work-product doctrine”; counsel should “investigate first, consult second, designate third.” Id. at 365–66.

2025The work product doctrine serves to “stimulate the production of information for trials, and it rewards an attorney’s creative efforts by giving his work product a qualified privilege from being shared with others.” Pope v. State, 207 S.W.3d 352, 357-58 (Tex. Crim.

2006See Axelson, Inc. v. McIlhany, 798 S.W.2d 550 , 554 n. 8 (Tex.1990, orig. proceeding) (noting that the work-product doctrine "protects only the mental impressions, opinions, and conclusions of the lawyer and not the facts”); Leede Oil & Gas, Inc. v. McCorkle, 789 S.W.2d 686, 687 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding) (attorney’s notes that were mere "neutral recitals of facts” and contained no commentary by the attorney were not covered by the work-product privilege). .

2006See Axelson, Inc. v. McIlhany, 798 S.W.2d 550 , 554 n. 8 (Tex.1990, orig. proceeding) (noting that the work-product doctrine "protects only the mental impressions, opinions, and conclusions of the lawyer and not the facts”); Leede Oil & Gas, Inc. v. McCorkle, 789 S.W.2d 686, 687 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding) (attorney’s notes that were mere "neutral recitals of facts” and contained no commentary by the attorney were not covered by the work-product privilege). .

2006See Humphreys v. Caldwell, 888 S.W.2d 469, 471 , (Tex.1994).

2006Changes in the discovery rules, effective January 1, 1999, and subsequent to Humphreys v. Caldwell , 888 S.W.2d 469, 471 (Tex. 1994), include rule 192.5 which clarifies the work product privilege, distinguishes core work product, and identifies specific exceptions.

2017Cf. Valdez, 863 S.W.2d at 460 (noting a document is not privileged simply because it is contained in an attorney's files); Owens-Corning, 818 S.W.2d at 750 n.2 (“While an attorney must be allowed to work with a degree of privacy, the protection granted under the work product doctrine does not extend to facts the attorney may 'acquire.”). .

2006See National Union , 863 S.W.2d at 460 .

2007P. 192.5(a)(1)-(2); Hickman, 329 U.S. at 512-13 , 67 S.Ct. 385 . [21] Rule 192.5(c) provides exceptions to the work-product privilege for: (1) information discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and contentions; (2) trial exhibits ordered disclosed under Rule 166 or Rule 190.4; (3) the name, address, and telephone number of any potential party or any person with knowledge of relevant facts; (4) any photograph or electronic image of underlying facts (e.g., a photograph of the accident scene) or a photograph or electronic image of any sort that a pa

2007P. 192.5(a)(1)-(2); Hickman, 329 U.S. at 512-13 , 67 S.Ct. 385 . [21] Rule 192.5(c) provides exceptions to the work-product privilege for: (1) information discoverable under Rule 192.3 concerning experts, trial witnesses, witness statements, and contentions; (2) trial exhibits ordered disclosed under Rule 166 or Rule 190.4; (3) the name, address, and telephone number of any potential party or any person with knowledge of relevant facts; (4) any photograph or electronic image of underlying facts (e.g., a photograph of the accident scene) or a photograph or electronic image of any sort that a pa

2006See Axelson, Inc. v. McIlhany, 798 S.W.2d 550 , 554 n. 8 (Tex.1990, orig. proceeding) (noting that the work-product doctrine "protects only the mental impressions, opinions, and conclusions of the lawyer and not the facts”); Leede Oil & Gas, Inc. v. McCorkle, 789 S.W.2d 686, 687 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding) (attorney’s notes that were mere "neutral recitals of facts” and contained no commentary by the attorney were not covered by the work-product privilege). .

2006See Axelson, Inc. v. McIlhany, 798 S.W.2d 550 , 554 n. 8 (Tex.1990, orig. proceeding) (noting that the work-product doctrine "protects only the mental impressions, opinions, and conclusions of the lawyer and not the facts”); Leede Oil & Gas, Inc. v. McCorkle, 789 S.W.2d 686, 687 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding) (attorney’s notes that were mere "neutral recitals of facts” and contained no commentary by the attorney were not covered by the work-product privilege). .

2010The work product privilege “promote[s] the adversary system by safeguarding the fruits of an attorney’s trial preparations from the discovery efforts of the opponent.” Wiley v. Williams, 769 S.W.2d 715, 717 (Tex.App.-Austin 1989, orig. proceeding); see generally In re Certain Undenmters at Lloyd’s London, 294 S.W.3d 891, 898 (Tex.App.-Beaumont 2009, no pet.) (The work product privilege “protects materials and mental impressions prepared ‘in anticipation of litigation’ from discovery.”).

1990It has been stated that the purpose of the work product privilege “is to promote the adversary system by safeguarding the fruits of an attorney’s trial preparations from the discovery efforts of the opponent.” Wiley v. Williams, 769 S.W.2d 715, 717 (Tex.App.—Austin 1989) (orig. proceeding).

2025Skurka, 512 S.W.3d 444 , 453–54 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.); cf. Marshall v. Hall, 943 S.W.2d 180, 183 (Tex. App.—Houston [1st Dist.] 1997, no writ) (concluding that attorney’s agent’s notes and summaries from witness interview were protected by the work-product privilege).

2014See Marshall v. Hall, 943 S.W.2d 180, 183 (Tex. App.—Houston [1st 14 Dist.] 1997, no writ).

2024Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749 , 751–52 (Tex. 1991); In re Bonding, 522 S.W.3d 75, 86 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding). 8 (Tex. 2012) (orig. proceeding).

2020See In re Kubosh Bail Bonding, 522 S.W.3d 75 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding).

2017Co. v. Davis, 856 S.W.2d 158, 164 (Tex. 1993) (orig. proceeding) (holding a party may waive the attorney-client privilege through offensive use); Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 752 (Tex. 1991) (orig. proceeding) (observing a party may waive the work-product privilege through offensive use); see also TEX.

2016Co. v. Davis, 856 S.W.2d 158, 164 (Tex.1998) (orig.proceeding) (the attorney-client privilege); Owen s-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 752 (Tex.1991) (orig.proceeding) (the work-product privilege); Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 107-08 (Tex.1985) (orig.proceeding) (the physician-patient privilege).

2025Work Product Privilege The attorney general has also concluded that section 552.111 incorporates the privilege for work product found in Texas Rule of Civil Procedure 192.5. 609 Rule 192.5 defines work product as: (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or (2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s re

2025Work Product Privilege The attorney general has also concluded that section 552.111 incorporates the privilege for work product found in Texas Rule of Civil Procedure 192.5. 609 Rule 192.5 defines work product as: (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or (2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s re

2020Id.

2015See id.; In re Bexar Cnty., 224 S.W.3d at 186 ; In re Park Cities Bank, 409 S.W.3d at 867 .

2006Appellant states that "[tjhere is no doubt that Dr. Benjamin's 'conclusions were the work product of defense counsel and would never have been provided to the prosecutor.' See Taylor v. State, 939 S.W.2d 148, 152 (Tex.Crim.App.1996).” But Taylor was decided before the legislature enacted the reciprocal-discovery statute.

2006Whether the trial court might have considered the validity of some other, unrelated objection at trial is not before us because such an objection was never made. [47] Appellant states that "[t]here is no doubt that Dr. Benjamin's `conclusions were the work product of defense counsel and would never have been provided to the prosecutor.' See Taylor v. State, 939 S.W.2d 148, 152 (Tex. Crim.App.1996)." But Taylor was decided before the legislature enacted the reciprocal-discovery statute.

2025Section 552.112: Certain Information Relating to Regulation of Financial Institutions or Securities Section 552.112 of the Government Code provides as follows: (a) Information is excepted from the requirements of Section 552.021 if it is information contained in or relating to examination, operating, or condition reports prepared by or for an agency responsible for the regulation or supervision of financial institutions or securities, or both. (b) In this section, “securities” has the meaning assigned by The Securities Act (Title 12, Government Code). 620 613 Nat’l Tank Co. v. Brotherton, 851

2013To determine the applicability of the work product privilege, the trial court must consider the totality of the circumstances and determine whether a reasonable person in Relators’ position would have anticipated litigation and whether they actually did anticipate litigation. 2 See In re Monsanto Co., 998 S.W.2d at 923-24 . 1.

2019See In re Christus Spohn , 222 S.W.3d at 439-41 (holding that the hospital could not use Rule 193.3(d) because the work-product privilege did not apply to the report at issue).

2016Kleberg , 222 S.W.3d 434 , 445 (Tex. 2007) (orig. proceeding) (holding that the work-product privilege did not protect documents provided to the relator's testifying *597 expert from discovery pursuant to rule 192.3(e)(6) ).

2016Thus, material prepared by a consulting expert appointed by the trial court to assist the defense in developing strategies and theories is protected by the work-product doctrine when that material reflects the expert’s thoughts regarding the strength and weaknesses of a defense theory. 207 S.W.3d 352, 357-58 (Tex.Crim.App.2006) (footnotes and citations omitted); see Woodruff v. State, 330 S.W.3d 709, 728-29 (Tex.App.-Texarkana 2010, pet. ref'd) (holding that the distinction between core work product and other work product applies in criminal cases) 4 Thus, materials that are prepared by or at

2015Evid. 503{d){3) (establishing that the attorney-client privilege does not extend to communications "relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer"); Woodruff v. State, 330 S.W.3d 709, 728 (Tex. App.-Texarkana 2010, pet. ref d) (holding that the exceptions of Texas Rule of Evidence 503{d) also apply to the work-product privilege in the proper circumstances).

2025Dist., 68 S.W.3d 722, 726 (Tex. App.—El Paso 2001, no pet.). 424 Open Records Decision No. 454 at 3 (1986). 425 Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 483 (Tex. App.—Austin 1997, orig. proceeding). 426 See Open Records Decision No. 677 at 2 (2002). 427 See Open Records Decision No. 677 at 2 (2002). 428 See Open Records Decision No. 677 at 4 (2002). 2024 Public Information Handbook • Office of the Attorney General 85 Exceptions to Disclosure either or both of the exceptions. 429 However, the governmental body must meet distinct burdens depending on the exception it is asse

2025Dist., 68 S.W.3d 722, 726 (Tex. App.—El Paso 2001, no pet.). 424 Open Records Decision No. 454 at 3 (1986). 425 Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 483 (Tex. App.—Austin 1997, orig. proceeding). 426 See Open Records Decision No. 677 at 2 (2002). 427 See Open Records Decision No. 677 at 2 (2002). 428 See Open Records Decision No. 677 at 4 (2002). 2024 Public Information Handbook • Office of the Attorney General 85 Exceptions to Disclosure either or both of the exceptions. 429 However, the governmental body must meet distinct burdens depending on the exception it is asse

2025Dist., 68 S.W.3d 722, 726 (Tex. App.—El Paso 2001, no pet.). 424 Open Records Decision No. 454 at 3 (1986). 425 Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 483 (Tex. App.—Austin 1997, orig. proceeding). 426 See Open Records Decision No. 677 at 2 (2002). 427 See Open Records Decision No. 677 at 2 (2002). 428 See Open Records Decision No. 677 at 4 (2002). 2024 Public Information Handbook • Office of the Attorney General 85 Exceptions to Disclosure either or both of the exceptions. 429 However, the governmental body must meet distinct burdens depending on the exception it is asse

2025Dist., 68 S.W.3d 722, 726 (Tex. App.—El Paso 2001, no pet.). 424 Open Records Decision No. 454 at 3 (1986). 425 Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 483 (Tex. App.—Austin 1997, orig. proceeding). 426 See Open Records Decision No. 677 at 2 (2002). 427 See Open Records Decision No. 677 at 2 (2002). 428 See Open Records Decision No. 677 at 4 (2002). 2024 Public Information Handbook • Office of the Attorney General 85 Exceptions to Disclosure either or both of the exceptions. 429 However, the governmental body must meet distinct burdens depending on the exception it is asse

2015See Walker, 827 S.W.2d at 843 . reasons supporting the attorney-client privilege in the context of the fiduciary-attorney relationship support even more We therefore conditionally grant the writ of mandamus strongly the work-product privilege, as the latter protects and direct the trial court to vacate its July 19, 1995, the confidentiality of work prepared in anticipation of discovery order.

2015Huie contends law to the facts." Walker v. Packer, 827 S.W.2d 833 , 840 that the work-product privilege protects communications (Tex.1992).

2015The State is required to disclose documents that contain Brady material even if those documents would otherwise be protected under the work-product privilege. 15 Ex Parte Miles, 359 S.W. 3d 647, 670 (Tex. Crim.

2015In re McCann, 422 S.W.3d 701 (Tex.Crim.App.2013) (attorney-client privilege); Ex parte Miles, 359 S.W.3d 647 (Tex.Crim.App.2012) . (privilege derived from the work-product doctrine); Sanchez v. State, 365 S.W.3d 681, 685 (Tex.Crim.App.2012) ("while district court judges are allowed to exchange benches without geographical restrictions, the Legislature - has not extended that same privilege to statutory county court judges.”); Vennus v. State, 282 S.W.3d 70 , 72 n.l (Tex.Crim.App.2009) ’ ("except with respect to privileges, the rules of evidence do not apply to suppression hear- tags.”); Lander