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TEXASJ.K. LeonardWhitney BroadwaterNAMAN HOWELL SMITH & LEE, PLLC10001 Reunion Place, Suite 600San Antonio, TX 78216Phone (210) 731-6300www.namanhowell.comjkleonard@namanhowell.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Texas’ work product doctrine will exempt from discovery any “material prepared ormental impressions developed in anticipation of litigation or for trial” by or for a party orits representatives (which includes attorneys, consultants, sureties, indemnitors,insurers, employees, or agents). TEX. R. CIV. P. 192.5(a). Also protected arecommunications made in anticipation of litigation or for trial between a party and theparty's representatives or among a party's representatives (defined above). Id. “Corework product” - that which contains mental impressions, opinions, conclusions, or legaltheories - is not discoverable. TEX. R. CIV. P. 192.5(b)(1). Non-core work product isdiscoverable upon a showing that the party seeking discovery has substantial need ofthe materials for the preparation of the party's case and that the party is unable withoutundue hardship to obtain the substantial equivalent of the material by other means.TEX. R. CIV. P. 192.5(b)(2). Certain work product is never protected from discovery: “(1)information discoverable under Rule 192.3 concerning experts, trial witnesses, witnessstatements, and contentions; (2) trial exhibits ordered disclosed under Rule 166 or Rule190.4; (3) the name, address, and telephone number of any potential party or anyperson with knowledge of relevant facts; (4) any photograph or electronic image ofunderlying facts (e.g., a photograph of the accident scene) or a photograph or electronicimage of any sort that a party intends to offer into evidence; and (5) any work productcreated under circumstances within an exception to the attorney-client privilege in Rule503(d) of the Rules of Evidence.” Id. § 192.5(c).2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?A witness statement that is signed, adopted, or approved in writing by the personmaking it, or a recording or transcript of such recording of a witness statement arediscoverable under Texas Rule of Civil Procedure 192.3(h). However, notes taken byan individual during an interview or conversation with a witness are not discoverablestatements. See TEX. R. CIV. P. 192.3(h).