Presenting Evidence in Texas Litigation: Tactical Use of Discovery and Claims of Privilege As a Sword and a Shield

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By Michael Pezzulli and Charles J. Fortunado

Advanced Evidence and Discovery: Presented to the State Bar of Texas

An uncritical reading of the various opinions dealing with the use of discovery in litigation as “a sword and a shield” might conclude that it cannot be done. Notwithstanding the substantial body of case law to the contrary, discovery and claims of privilege can be used as both a sword and a shield. Indeed, it is often in the client’s best interest to use – or attempt to use – discovery and claims of privilege as both a sword and a shield.

This paper will concentrate on the tactical use of discovery requests, and claims of privilege as tactical weapons, in litigation. It will specifically address precluding the presentation of evidence for failure to supplement pursuant to Texas Rules of Civil Procedure 166b(6) and 215(5).

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