ACC recently filed an amici curiae brief in the Supreme Court of Texas with the IADC on the topic of attorney-client privilege.
WASHINGTON (October 31, 2018) — The Association of Corporate Counsel (ACC), a global legal association representing more than 45,000 in-house counsel employed by over 10,000 organizations in 85 countries, recently filed an amici curiae brief in the Supreme Court of Texas in In Re: City of Dickerson v. Texas Windstorm Insurance Association (TWIA), arguing against the creation of an exception to the attorney-client privilege for communications with employee experts. ACC joined with the International Association of Defense Counsel in its filing.
The case addresses the use of a TWIA employee as an expert witness and the city's assertion that the use of an employee as an expert waives attorney-client privilege over communications with that employee under the state rules of civil procedure that govern expert witness discovery. The trial court agreed with the city's position and ordered TWIA to disclose the communications. The trial court's decision was overturned on appeal, and now the city seeks Supreme Court review of the issue.
In its brief, ACC stated that creating an employee-expert exception would set a dangerous precedent for attorney-client privilege, and force companies to choose between retaining outside experts at great expense and relying on internal employees, who may also be the most knowledgeable witnesses about the subject matter.
"The use of employee experts arises in a number of settings, and the use of such experts should not threaten attorney-client privilege," said Mary Blatch, ACC associate general counsel and director of advocacy. "The City is arguing that work product protection and the attorney-client privilege are essentially the same under these circumstances and that couldn't be further from the truth."
The ACC brief states that, "In situations where there is serial litigation across different jurisdictions, such as in the products-liability context, the privilege would cover a lawyer's communications with an employee-expert in other jurisdictions, but not in Texas. If, for example, a corporate entity discloses privileged communications in a Texas case under an 'employee-expert exception,' then another state court could deem the Texas disclosures as privilege waiver and force the entity to disclose the otherwise privileged communications in that state's litigation. This ripple-effect erodes the privilege even more."
The brief is available here.
About ACC: The Association of Corporate Counsel (ACC) is a global legal association that promotes the common professional and business interests of in-house counsel who work for corporations, associations and other organizations through information, education, networking, and advocacy. With more than 45,000 members in 85 countries employed by over 10,000 organizations, ACC connects its members to the people and resources necessary for both personal and professional growth. By in-house counsel, for in-house counsel.® For more information, visit www.acc.com and follow ACC on Twitter: @ACCinhouse.