D.N.S. v. Schattman
Relator D.N.S., M.D. (Dr. S.) seeks mandamus relief against an order by the trial court compelling him to produce a narrative report to Michael Anderson, the real party in interest. Dr. S. prepared this report for his professional liability insurer after receiving a healthcare liability claim notice from Anderson, who had sued his employers for wrongful termination, invasion of privacy, and intentional infliction of emotional distress related to a work injury and drug screen. Anderson later added Dr. S. as a defendant and requested the narrative report during discovery, which Dr. S. objected to based on attorney-client, party-communication, and investigative privileges. The trial court ordered the production, citing that the report was prepared in anticipation of trial and testimony, and formed the basis of Dr. S.'s mental impressions as an expert, ruling it discoverable under Texas Rule of Civil Procedure 166b(2)(e)(l). The appellate court disagreed, holding that the specific rule for tangible reports, 166b(2)(e)(2), should apply, and found no evidence that the report was prepared in anticipation of Dr. S.'s testimony as an expert, thus concluding the trial court abused its discretion. Consequently, the petition for writ of mandamus is conditionally granted, requiring the trial court to vacate the order compelling production of the privileged narrative report.