CROSSOVER: Attorney Fee Disclosure Defense: No Need for Total Dollar Amounts or Unredacted Invoices in Expert Disclosures

In re Kirt McGhee, 09-25-00326-CV, March 19, 2026.

On appeal from 284th District Court of Montgomery County, Texas.

Synopsis

The Ninth Court of Appeals conditionally granted mandamus relief after a trial court exceeded its authority on remand by compelling the production of unredacted attorney fee invoices and supplemental expert disclosures. The court held that because the appellate court had previously determined the Relator’s existing disclosures were sufficient to support expert testimony, the trial court was bound by the law of the case and could not impose additional discovery requirements that contradicted the appellate mandate.

Relevance to Family Law

In Texas family law litigation, attorney’s fee disputes are often as hotly contested as the underlying property division or custody arrangements. This ruling is a critical reminder that seeking attorney’s fees does not result in an automatic waiver of the attorney-client privilege regarding billing descriptions. For family law practitioners, this case provides a defensive shield against “fishing expeditions” where opposing counsel seeks unredacted invoices to glean insight into legal strategy, witness interviews, or mental impressions under the guise of challenging the reasonableness and necessity of fees.

Case Summary

Fact Summary

This proceeding arose from a landlord-tenant dispute where the plaintiff, Kirt McGhee, sought attorney’s fees under the Texas Property Code. During the initial jury trial, McGhee’s counsel offered redacted billing invoices into evidence, which were admitted without objection. However, when counsel attempted to testify regarding the reasonableness and necessity of those fees, the defendant, Novoterra, objected on the basis that McGhee had failed to disclose a “total dollar amount” of fees in his Rule 194.2(f) expert disclosures. The trial court sustained the objection and granted a directed verdict against McGhee on the fee issue.

McGhee appealed, and the Ninth Court of Appeals previously reversed, holding that the disclosures were adequate because they provided the “general substance” of the expert’s testimony and the billing records were already in evidence without objection. On remand, despite the appellate court’s ruling, the trial court issued a new discovery order compelling McGhee to produce unredacted invoices and provide supplemental expert disclosures. McGhee sought mandamus relief, arguing the trial court lacked the authority to revisit the sufficiency of disclosures already blessed by the appellate court.

Issues Decided

1. Whether a trial court abuses its discretion by compelling the production of unredacted billing invoices when the party has asserted attorney-client privilege and the records are not within the party’s possession, custody, or control.
2. Whether the “law of the case” doctrine prevents a trial court from ordering supplemental expert disclosures after an appellate court has already ruled that the initial disclosures were legally sufficient.
3. Whether mandamus is the appropriate remedy when a trial court fails to comply with an appellate mandate regarding discovery.

Rules Applied

• Texas Rule of Civil Procedure 192.3(b): Limits discovery to matters within the party’s possession, custody, or control.
• Texas Rule of Civil Procedure 193.2(a): Governs the timing and method for asserting objections and privileges to discovery.
• Former Texas Rule of Civil Procedure 194.2(f): Requires disclosure of the general substance of an expert’s mental impressions and opinions and a brief summary of the basis for them.
• Law of the Case Doctrine: A principle providing that questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages.
• Attorney-Client Privilege: Parties do not waive this privilege simply by seeking to recover attorney’s fees from an opposing party.

Application

The court’s analysis centered on the constraints placed upon a trial court following an appellate remand. The Ninth Court of Appeals emphasized that its prior holding—finding McGhee’s disclosures adequate—constituted the law of the case. Consequently, the trial court was not “at liberty to disregard” that ruling by requiring the same expert to provide deeper disclosures than those already deemed sufficient. The court noted that while a duty to supplement exists under Rule 193.6 for new information, it cannot be used as a vehicle to relitigate the adequacy of original disclosures that an appellate court has already validated.

Regarding the unredacted invoices, the court found two primary errors in the trial court’s order. First, the court reaffirmed that seeking fees does not waive the attorney-client privilege; thus, redactions remain a valid method of protecting privileged communications within billing entries. Second, the court addressed the practical impossibility of production: McGhee’s counsel provided a declaration that the unredacted records from a predecessor firm were no longer available or had been destroyed. Because the trial court had no evidence that these unredacted records were currently in McGhee’s possession, custody, or control, compelling their production was an abuse of discretion.

Holding

The trial court clearly abused its discretion by ordering the production of unredacted invoices and supplemental expert disclosures that contradicted the appellate court’s prior mandate.

Mandamus relief was appropriate because the trial court’s noncompliance with a prior appellate judgment cannot be adequately remedied on appeal, particularly when the discovery order affects the sole remaining issue in the litigation. The petition for writ of mandamus was conditionally granted.

Practical Application

For the family law practitioner, In re McGhee offers several strategic takeaways:

• Protecting Billing Descriptions: When your fee expert (often trial counsel) testifies, ensure that billing records are redacted for privilege early in the process. If those redacted records are admitted without objection at any stage, the opposition loses the ability to demand “unredacted” versions later.
• Sufficiency of Disclosures: You do not necessarily need to disclose a “total dollar amount” to satisfy expert disclosure requirements for attorney’s fees. Disclosing the “general substance”—i.e., that you are seeking fees incurred through the duration of the litigation—is often sufficient.
• Possession and Control: If an opponent moves to compel files from a prior attorney (common in “successor counsel” situations), use declarations to establish a lack of possession, custody, or control if those files truly are unavailable.

Checklists

Preserving the Privilege in Fee Disputes

• Identify all entries in billing software that reveal strategy, mental impressions, or confidential client communications.
• Apply redactions to invoices before producing them in discovery.
• Ensure the redacted invoices are the versions offered into evidence at trial or attached to MSJs.
• Explicitly state that the redactions are based on attorney-client privilege in your discovery responses.

Navigating Remand on Attorney’s Fees

• Review the appellate mandate to determine if the “adequacy” of your prior disclosures was specifically addressed.
• Object to any new docket control orders that attempt to reopen discovery on issues already settled by the appellate court’s “law of the case.”
• Supplement only with new fees incurred post-remand, rather than re-disclosing the basis for fees already litigated.

Citation

In re Kirt McGhee, No. 09-25-00326-CV, 2026 WL ______ (Tex. App.—Beaumont Mar. 19, 2026, orig. proceeding).

Full Opinion

View Full Opinion Here

Family Law Crossover

In high-conflict Texas divorce or SAPCR litigation, attorney fee “audits” are frequently used as a weapon to harass the opposing party or to gain an unfair advantage by peeking at their legal strategy. Opposing counsel may argue that by asking the court to shift fees under the Texas Family Code (e.g., Section 106.002), you have “put the fees at issue” and waived privilege. In re McGhee is your counter-authority. It reinforces that the privilege remains intact. Furthermore, in cases that have been appealed and remanded—often the case in complex property divisions—this opinion prevents the trial court from allowing the “losing” party to have a second bite at the discovery apple regarding your expert disclosures. Use this case to shut down post-remand discovery expansion and to protect the sanctity of your billing narratives.

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