Texas Takes a Different Approach to Deposing In-House Counsel
The deposition of an opposing party’s in-house counsel is a tempting target in high-stakes litigation, but nowhere more so than in Texas, a jurisdiction more permissive than any other when it comes to deposing lawyers for the opposing party. Federal courts and nearly every other state court require that parties seeking to depose opposing in-house counsel demonstrate that no other source exists for the information, that the information is relevant and unprivileged, and that the information is crucial to case preparation.
These procedural hurdles to in-house counsel depositions trace back to Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), the decision most jurisdictions treat as the starting point for attorney depositions. These rules are similar to the apex deposition doctrine for high-level corporate officials.
An attorney may not dodge a deposition merely because some questions may call for answers protected by privilege.
Texas state courts impose no comparable threshold. In Borden Inc. v. Valdez, 773 S.W.2d 718 (Tex. App. — Corpus Christi [13th Dist.] 1989), the court ordered Borden to produce its corporate labor counsel, Keith King, for deposition even though King had advised three managers about the termination at the heart of the case. The court held that privilege bars particular questions, not the deposition itself. As the Texas Bar Journal analysis of that line of cases put it, an attorney may not dodge a deposition merely because some questions may call for answers protected by privilege.
Questioning Opponent’s Former Counsel Invited Disqualification
A very recent case from the Texas Court of Appeals illustrates the point. In re Pioneer Natural Resources USA, No. 11-26-00131-CV (Tex. App. — Eastland [11th Dist.], June 18, 2026), the court was asked to review a thorny discovery dispute that arose when defense counsel communicated informally with the plaintiff’s former in-house counsel about topics related to the litigation.
Without delving too deeply into the high-octane, inside-baseballish world of Texas oil and gas law, let’s just say that plaintiff Pioneer Natural Resources alleged that the defendants’ (a competing group of oil drillers) purchase of “top leases” unlawfully interfered with Pioneer’s plans to conduct “horizontal drilling operations” on the same ancient underground puddle of plankton. Pioneer alleged that it had suffered $465 million in damages. The defendants were skeptical that Pioneer had been damaged to this extent.
Early on in the litigation the trial court ruled that Pioneer had waived through offensive use attorney-client and work product privileges on something called a “rig schedule,” which seems to be the plan for how Pioneer intended to execute its horizontal drilling strategy. The defendants deposed Pioneer’s in-house counsel on various topics, including the “rig schedule” business that the trial court ruled was no longer subject to attorney-client privilege.
Subsequent to that deposition, the defendants’ counsel communicated with Pioneer’s former in-house counsel, sought his agreement to give a deposition, and, on one occasion, recorded a conversation with that attorney. When these communications came to light, Pioneer, alleging that defendants’ attorney had exceeded the narrow scope of the trial court’s limited attorney-client waiver ruling, sought disqualification of the defendants’ attorney. The appellate court agreed that the trial court had correctly ruled that disqualification was not merited on these facts.
Facts Are Always Discoverable
Though the case was nominally turned on the appropriate standard for evaluating when counsel should be disqualified after acquiring, in an unauthorized manner, privileged information belonging to the opposing party, it also highlighted the challenges faced by litigators when they seek information from an opposing party’s in-house counsel. What follows are several pointers that may come in handy when litigators are engaged in this endeavor.
Identify the governing legal standard. In the federal system and nearly every other jurisdiction, the party seeking to take opposing counsel’s deposition will face a high procedural hurdle. Federal courts will apply Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), which require a showing that the information sought is not available via other sources. Texas state courts impose no comparable threshold.
Don’t assume apex protection shields the lawyer from the deposition. Texas protects high-ranking corporate officials from depositions absent a showing that they possess unique knowledge of the information sought. Texas courts have not extended that framework to lawyers.
Specify the subjects to be covered in the deposition. In Texas, Texas Rule 199.2(b)(1) requires reasonable particularity when an organization designates a witness, and Texas courts recommend the same discipline for sensitive deponents such as in-house counsel.
Limit questions to facts, not communications. Privilege ordinarily does not prevent a lawyer from testifying about factual matters, provided the testimony reveals no confidential communications. Skilled litigators may build questions around events, dates, documents, and participants (e.g., what the lawyer observed, who attended a meeting, when a hold notice issued, and which custodians received it).
Establish which roles the lawyer played in the company. In-house lawyers can serve their employer/client in many capacities, not all of which raise attorney-client privilege concerns. In-house lawyers negotiate contracts, run investigations, approve public statements, and make hiring calls. In Texas, courts recognize that the privilege does not reach work performed in a non-legal capacity.
Former in-house counsel may have less room to assert privilege. A lawyer who leaves the company before the dispute arose may forfeit some of the doctrinal protection for attorney-client privilege. Yes, the company’s privilege survives the employment relationship, but departure changes who may resist the deposition.
For more deposition quick tips, see our series on deposing the expert witness, doctors and medical experts, corporate representatives, lay witnesses, and plaintiffs in civil litigation.