As with most complex commercial
litigation, lawsuits over construction often involve investigations into
electronically stored information (“ESI”). In Texas, a recent case has
clarified the requirements necessary to order a party to turn over hard drives
during disputes over production of ESI.
In 2013, a Texas Court of Appeals in
Houston granted a writ of mandamus and vacated an order to compel production of
computer and network hard drives.
In the lawsuit, several former co-owners of businesses had a falling out and sued
one another alleging various claims. Central to the case was whether one of the
parties had misrepresented his educational background to the other.
After several disputes regarding
whether responsive ESI had been produced, the trial court issued an order
requiring production of forensic images of the defendants’ computer hard drives
and the drives of their network servers. Forensic images are digital duplicates
of hard drives prepared used to prevent any changes being made to the original
source of the ESI.
The defendants sought mandamus relief from
the court of appeals, arguing the trial court had abused its discretion. They
argued that the order was overly broad, giving the plaintiff “carte blanche to
rummage through” their hard drives without any reasonable limits to address
privilege, confidentiality, or privacy.
The court of appeals granted the writ
of mandamus and vacated the order. It examined the Order in light of the applicable
Texas Rules of Civil Procedure, as well as a seminal Texas Supreme Court case
on electronic discovery, In
re Weekley Homes, 295 S.W. 3d 309 (Tex. 2009).
In Texas, courts have held that providing direct access to electronic
information systems is particularly intrusive and should be discouraged. An
order requiring electronic data storage systems to be turned over is not appropriate
unless and until the moving party has shown that existing discovery responses were
inadequate and the proposed searches of the storage systems could recover the relevant
missing information.
In this case, the court found that a
conclusory statement that “emails must exist” was insufficient to overcome the
threshold question of whether there was an inadequate production. The moving
party had to present actual evidence that the production was somehow deficient.
Moreover, even with such a showing, the moving party had not shown that there
was deleted relevant information which could feasibly be recovered by taking a
forensic image of the hardware. To do so, the requesting party should have
provided information from his forensic imaging expert as to why his methods
would have produced relevant deleted information.
The court also examined the requests
for production at issue, and found them insufficiently specific to justify the
trial court’s order. The moving party made a blanket request for servers,
tablets, and laptops, which was insufficient because it did not inform the opposing
parties of the exact nature of the information sought. Specific discovery requests must be aligned
with the request for the production of hardware.
The widespread use of ESI to conduct
business continues to require attorneys and courts to evaluate how far parties
may go to uncover documents through discovery. This case suggests that a party
seeking to search its opponents’ hard drives must prepare a detailed and
thorough justification of the request before a trial court can permit the
searches to proceed.
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