holding that the objective test for when litigation may be reasonably anticipated is when Aa reasonable person would conclude from the severity of the accident and the other circumstances surrounding it that there was a substantial chance@ for litigation
How later courts described this case
- holding that the objective test for when litigation may be reasonably anticipated is when Aa reasonable person would conclude from the severity of the accident and the other circumstances surrounding it that there was a substantial chance@ for litigation
- noting that the common law work-product doctrine had shielded from discovery "specific documents, reports, communications, memoranda, mental impressions, conclusions, opinions, or legal theories, prepared and assembled [by an attorney] in actual anticipation of litigation or for trial"
- holding that courts must examine the “totality of the circumstances” in making an objective determination of whether litigation was anticipated
- holding an investigation is conducted “in anticipation of litigation,” and therefore privileged, if, based on the totality of the circumstances, it meets the two-prong test of Flores
Written by the judges who cited it.
The opinion
GONZALEZ, Justice,
concurring.
I concur in the judgment of the Court, but disagree with part IV of the Court’s opinion. The two-prong test of Flores v. Fourth Court of Appeals, 777 S.W.2d 38 (Tex.1989), is not used in any other jurisdiction that has interpreted the phrase “anticipation of litigation.” For the reasons stated in Scott v. Twelfth Court of Appeals, 843 S.W.2d 439, 447 (Tex.1993) (Gonzalez, J., dissenting), I would overrule Flores and bring Texas in line with the overwhelming majority of other jurisdictions that have addressed this issue.