The first instinct is to investigate. Two strong reasons exist for doing so. First, the cause of the accident needs to be determined so future accidents won't occur. Second, with a lawsuit probable, the contractors on the project want to learn as much as they can from their employees while their memories are still fresh.

But will the investigation data and reports be discoverable by a plaintiff's attorney in a lawsuit? Will he be able to use favorable parts of the investigation to his benefit and discount unfavorable parts as unreliable and self-serving? If so, will the contractors' investigation be as thorough as it would otherwise be?

On the other hand, will the investigation allow the defendant an opportunity to conceal inconvenient facts and taint the testimony of witnesses?

Texas courts have long struggled with balancing these various concerns. As a result, few attorneys - and fewer managerial staffers at Texas businesses - know precisely the bounds of the investigative privileges provided by Texas law.

The writers of this article do not pretend to know, themselves, where these bounds are. Rather, this paper presents relevant cases in a framework for analyzing the applicability of investigative privileges in particular cases. The individual reader is left to consider, on his own, how far these cases expand and contract the bounds of these privileges.

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