Inadvertent production of privileged material is something all trial counsel worries about in today’s world of e-discovery. Complicated “claw back” provisions are drafted and inserted in protective orders to provide an extra layer of protection. In Texas, lawyers and in-house counsel have an additional layer of protection in the language of Texas Rule of Civil Procedure 193.3(d), commonly known as the “snap-back” provision. The snap-back provision provides that:
“A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these Rules of Evidence if-within ten days or shorter time ordered by the court, after the producing party actually discovers that such production was made-the producing party amends the response, identifying the material or information produced and stating the privilege asserted.”
The Rule has two key points. First, the rule is focused on intent to waive the privilege not the intent to produce the material or information. See Tex. R. Civ. Proc. 193 cmt 4; see also In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. 2007). Secondly, the triggering date is not the date of production of the material or information, but the date of actual discovery that an inadvertent production was made.
Texas Courts have applied and considered the snap-back provision in a wide variety of cases. See In re AEP Tex. Cent. Co., 128 S.W.3d 687 (Tex. App. – San Antonio 2003, no writ) (holding that legal memorandum prepared in anticipation of litigation and inadvertently produced was covered by snap-back provision); Warrantech Corp. v. Computer Adapters Servs., 134 S.W.3d 516 (Tex. App. – Fort Worth 2003, no writ) (holding privilege was not waived by inadvertent disclosure and trial court did not abuse discretion in excluding letter at trial). In the Christus Spohn Hosp. Kleberg case, the Supreme Court of Texas denied the request for mandamus based on the snap-back provision because the privilege holder was going to have the expert to whom the privileged material was disclosed testify despite the disclosure. However, the Supreme Court held that the snap-back provision would preserve the privilege and take precedence over the rule mandating that all documents provided to a testifying expert are discoverable if the expert did not testify and his designation was withdrawn. See In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. 2007).
The snap-back provision is a useful tool that can be supplemented by the traditional claw back language used in agreed protective orders. Relying on both the snap-back provision and the claw back provision in an agreed protective order along with reasonable discovery review procedures with multiple layers of review (i.e. first review for responsiveness followed by second and third reviews for privilege, etc.) can help eliminate the damage and expense that an inadvertent production of a privileged document can cause.
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