Scott v. Twelfth Court of Appeals

I join Justice Hecht’s dissenting opinion except his discussion of Flores v. Fourth Court of Appeals, 111 S.W.2d 38 (Tex.1989). The two-prong test of Flores is not used in any other jurisdiction that has interpreted the phrase “anticipation of litigation” and the test has proved unworkable.1

*448The test adopted by virtually every other court considering this question inquires only whether the investigation was in fact done for the purpose of preparing for potential litigation.2 The investigatory privileges are intended to promote the adversarial process by encouraging full investigation of the…