Republic Insurance Company, Relator v. the Honorable Paul R. Davis, Jr., Judge, Respondent

Summary

The Texas Supreme Court held that the Ginsberg "offensive use" waiver does not apply to the attorney‑client privilege in this case because Republic's declaratory‑judgment action is not affirmative relief, and that the party‑communication privilege does not extend to communications generated in other litigation. Accordingly, the trial court's order compelling production of privileged documents was an abuse of discretion and the writ of mandamus was granted to vacate that order. Justice Gammage, joined by Justice Doggett, concurred in part and dissented in part, arguing that the declaratory‑judgment suit is offensive use and that the majority’s new three‑factor test is too restrictive.