Opinion
No. 09-07-104 CV.
Opinion Delivered March 22, 2007.
Original Proceeding
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
Joseph G. Beke and Sharon A. Beke filed a petition for writ of mandamus. The trial court denied the Bekes' motion to compel Montgomery County to produce the complete file regarding an appraiser who was identified by the County as a consulting expert. See Tex. R. Civ. P. 192.3(e) ("The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable."). The rules regarding discovery do not provide that the consulting-only expert's file, the party's correspondence to its consulting-only expert, the notes in its file concerning its consulting-only expert, and e-mail to and from its consulting-only expert are discoverable. Because the rules specifically prohibit discovery from consulting-only experts, under the circumstances presented the rules do not allow discovery of underlying facts and data that the consulting-only expert may have considered and that may be contained in the file sought by the Bekes.
In this case, the Bekes claim that their land is worth more than the value stated by the County's testifying expert. They apparently believe that the consultant's expert opinion or the data in his file, if discovered, would support their contention. However, the consulting expert's work had not been reviewed or relied upon by the County's testifying expert, and the County has not identified its consultant as a witness it intends to call when this case is tried. The Bekes also desire to discover the facts and data from which the County's consulting expert arrived at his opinion and to use that information to impeach the County's testifying expert.
While the information might be useful in their case, nothing prohibits the Bekes from obtaining opinion testimony from their own experts to establish the value of their property. "The policy behind the consulting expert privilege is to encourage parties to seek expert advice in evaluating their case and to prevent a party from receiving undue benefit from an adversary's efforts and diligence." Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 559 (Tex. 1990) (orig. proceeding).
Mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). After reviewing the mandamus record and petition, and the response filed by the real party in interest, we conclude the relator has not demonstrated that the trial court's ruling severely compromises the Bekes' ability to present their property-value claim. See Walker, 827 S.W.2d at 843. Accordingly, the petition for writ of mandamus is denied.
WRIT DENIED.