Mechanism 21
Snapping back privileged material produced by accident
What do you do when privileged documents go out in a production?
Amend within ten days and it is not a waiver. The rule is more forgiving than most people believe, and the reason is where the clock starts: ten days after the producing party actually discovers the production was made, not ten days after the production. The receiving party must then promptly return the material.
By John P. Henry · Tex. R. Civ. P. 193.3(d) · Reviewed 2026-08-02
The authority
A party who produces material or information without intending to waive a claim of privilege does not waive that claim … if — within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made — the producing party amends the response, identifying the material or information produced and stating the privilege asserted.Tex. R. Civ. P. 193.3(d)
Tex. R. Civ. P. 193.3(d)
When it applies
Any production large enough that review was sampled rather than complete, which is most of them. Also the shared mailbox, the forwarded chain, the attachment nobody opened.
How it is proved up
- Amend the response in writing. Identify the material and state the privilege — a letter asking for the documents back is not what the rule requires and does not start anything.
- Date the discovery and be able to prove it. The ten days runs from actual discovery, so the record of when you found out is the record that matters.
- Do not wait to finish the review. Snap back the documents you have found and amend again if more surface; the rule contemplates that.
- If you are the receiving party, return them promptly and do not read further. The obligation is 'promptly', not ten days, and the tactical value of arguing about it is far smaller than the professional exposure.
- Ask the court to shorten the period only if you mean it — the rule permits a shorter time by order, which cuts both ways.
What defeats it
- An intentional production, which is a waiver whatever is said afterwards.
- Delay past ten days from actual discovery.
- Failing to amend the response, however clearly the demand was communicated.
- A court order shortening the period that nobody diaried.
Where I have used it
Included because two things about this rule are almost universally misremembered — that there are two ten-day windows, and that the clock runs from the production. There is one window, and it runs from discovery.
Questions
How long do you have to snap back privileged documents in Texas?
Ten days, or a shorter time ordered by the court, after the producing party actually discovers that the production was made. Tex. R. Civ. P. 193.3(d).
Does the receiving party have ten days to return privileged material?
No. The rule requires the receiving party to return the specified material or information promptly. The ten-day period belongs to the producing party's obligation to amend.
Does producing a privileged document waive the privilege in Texas?
Not if it was produced without intending to waive and the producing party amends within the Rule 193.3(d) period. An intentional production is a different matter.