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In this issue of Under Advisement, you will find an update on the new rules of discovery. Do these new rules make your "Confidential File" an "Open Book"? Three recent court rulings have seriously eroded confidentiality in this area, making it necessary to reevaluate procedures for obtaining information pertaining to accidents or other incidents. To assist in reformulating your procedures, we have included a list of Dos and Don’ts.

Three recent Texas appellate opinions appear to strip away any argument for maintaining the confidentiality of a party’s own statement in the absence of an attorney-client relationship. (See Case Briefs below.) These holdings threaten to expose virtually any pre-suit communication between insureds and their carriers, as well as employers and their employees, despite assertions of privilege. Two of these opinions uphold trial court orders compelling production of insureds’ "witness statements" in cases originally filed while the old rules of discovery were in effect. The other opinion reaches a similar result in a case filed after the new rules became effective.

These cases will undoubtedly be used aggressively by those seeking confidential files and investigation materials; however, these cases also lay out the bases for limiting their own effect.

Discovery of your files may be minimized (if not entirely avoided) by following the Dos and Don’ts listed below. Remember that the simple act of hiring an attorney does not, of itself, impart privileged status to all communications. [click here for detailed information...]

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• A corporate executive’s entire pre-suit letter to an insurance carrier was held to be discoverable, even though it contained a discussion of confidential corporate safety procedures and policies, because the letter included an employee’s description of an accident, which the court deemed to be a discoverable "witness statement." See In re Team Transp., Inc., 996 S.W.2d 256 (Tex. App.C Houston [14th Dist.] 1999, orig. proceeding). [more info…]

• A defendant truck driver’s "witness statement" to an insurance investigator was held not to be protected by the attorney-client privilege, be-cause certain elements of the privilege were not properly established. See In re W&G Trucking, Inc., 990 S.W.2d 473 (Tex. App.C Beaumont 1999, orig. proceeding). [more info…]

• A defendant automobile driver’s statement to his insurance carrier was held to be discoverable, despite a claim of work-product privilege. See In re Jimenez, 4 S.W.3d 894 (Tex. App.C Houston [1st Dist.] 1999, orig. proceeding). [more info…]

THE INFORMATION CONTAINED IN UNDER ADVISEMENT IS BUT A PRESENTATION OF OPINION(S) BY ONE OR MORE ATTORNEYS AS TO CERTAIN MATTERS OF LAW. THIS INFORMATION IS NOT PRESENTED AS A CONCLUSIVE OR FORMAL LEGAL ANALYSIS; NEITHER IS IT PRESENTED FOR THE PURPOSE OF PROVIDING ANY LEGAL SERVICE OR ESTABLISHING ANY ATTORNEY-CLIENT RELATIONSHIP. HICKS & Llamas, P.C. PROVIDES UNDER ADVISEMENT FREE OF CHARGE, DOES NOT GUARANTEE THE ACCURACY, ADEQUACY, OR COMPLETENESS OF ANY INFORMATION CONTAINED HEREIN, AND IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS OR FOR THE RESULTS OBTAINED FROM USE OF ANY INFORMATION CONTAINED HEREIN. HICKS & Llamas, P.C. ASSUMES NO RESPONSIBILITY OR LIABILITY, EXPRESS OR IMPLIED, FOR ERRORS OR OMISSIONS OF ANY KIND, AND NO WARRANTIES OF MERCHANTIBILITY OR FITNESS, EXPRESS OR IMPLIED, ARE MADE OR ARE TO BE IMPLIED. UNDER ADVISEMENT IS BEING ACCEPTED AS IS WITH ALL FAULTS, ERRORS, AND OMISSIONS.

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