The Texas Supreme Court issued the first Opinion interpreting the first eDiscovery Rule of Procedure in the US, In Re Weekley Homes. Texas Rule of Civil Procedure 196.4 was adopted by the Texas Supreme Court in 1999 with a number of sweeping discovery reforms, long before the Federal Rules of Civil Procedure were changed in 2006 to deal with Electronically Stored Information (ESI). However it took 10 years to get an appellate review of the Texas Rule 196.4.

What Happened at the Trial Court?

More than two years after the alleged causes of action occurred Defendant Weekley produced a number of emails and documents in the normal course of discovery. Weekley’s procedures were to delete emails after 30 days because of storage limitations. There was also evidence that Weekley employees could store emails on their local hard drives. Since Weekley produced only a handful of emails the plaintiff assumed that Weekley might have deleted emails on the employees’ computers. As a result, after a motion to compel the trial Judge ordered Weekley turn over certain computers to be mirror imaged to allow plaintiff’s experts to search for deleted emails. Weekley filed a writ of mandamus claiming that the trial Judge exceeded her authority since plaintiff failed to comply with Rule 196.4 which would have required plaintiff to ask specifically for deleted emails.

What Did the Texas Supreme Court Say?

The Texas Supreme Court agreed with Weekley that the trial Judge exceeded her authority and in its Opinion explained that turning over computers with the possible hope to find deleted emails from more than 2 years earlier was too extreme since there was no specific request under Rule 196.4 for deleted emails. The purportedly deleted emails were not necessarily at the crux of the case so the Supreme Court compared the facts in this case to other rulings where the ESI sought related to the critical evidence of metadata associated with the exact contract in dispute (In re Honza, 242 S.W.3d 578, 583 n.8 (Tex. App.—Waco 2008, pet. denied).

The Texas Supreme Court specifically said that the parties have an obligation to share information about ESI in discovery to help avoid discovery disputes and that just like the Federal Rules from 2006 that a party has the right to search its own ESI and determine what exists, but getting unlimited access to the opposing party’s computer system is an extreme intrusion. Further the Court set specific guidelines for discovery of ESI in Texas State Courts:

“With these overriding principles in mind, we summarize the proper procedure under Rule 196.4:

— the party seeking to discover electronic information must make a specific request for that information and specify the form of production. TEX. R. CIV. P. 196.4.

— The responding party must then produce any electronic information that is “responsive to the request and . . . reasonably available to the responding party in its ordinary course of business.” Id.

— If “the responding party cannot — through reasonable efforts — retrieve the data or information requested or produce it in the form requested,” the responding party must object on those grounds. Id.

— The parties should make reasonable efforts to resolve the dispute without court intervention. TEX. R. CIV. P. 191.2.

— If the parties are unable to resolve the dispute, either party may request a hearing on the objection, TEX. R. CIV. P. 193.4(a), at which the responding party must demonstrate that the requested information is not reasonably available because of undue burden or cost, TEX. R. CIV. P. 192.4(b).

— If the trial court determines the requested information is not reasonably available, the court may nevertheless order production upon a showing by the requesting party that the benefits of production outweigh the burdens imposed, again subject to Rule 192.4’s discovery limitations.

— If the benefits are shown to outweigh the burdens of production and the trial court orders production of information that is not reasonably available, sensitive information should be protected and the least intrusive means should be employed. TEX. R. CIV. P. 192.6(b). The requesting party must also pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information. TEX. R. CIV. P. 196.4.

— Finally, when determining the means by which the sources should be searched and information produced, direct access to another party’s electronic storage devices is discouraged, and courts should be extremely cautious to guard against undue intrusion.”

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