Texas Supreme Court Enumerates E-Discovery Procedures

Electronically stored information has almost totally supplanted paper as the primary medium of recordkeeping. In recognition of this, the Texas Supreme Court added Texas Rule of Civil Procedure 196.4 in 1999. Last week, and ten years later, in In re Weekley Homes, L.P., the Texas Supreme Court analyzed the rule and defined the procedures governing discovery of electronically stored information.¹

A development company called HFG sued homebuilder Weekley for fraud inducing HFG’s execution of a contract. HFG asked Weekley to produce e-mails from Weekley relating to the contract and the truth of Weekley’s representations. Among the e-mails Weekley produced, one related to a Weekley representation. HFG suspected there must be more than one relevant e-mail, and moved to compel production. Weekley testified its document retention policy required users to delete e-mails to avoid exceeding mailbox size limits, its backup tapes were rotated and overwritten every thirty days, and the two year old e-mails HFG sought were not likely to still exist and thus, not be producible.

The trial court denied HFG’s motion to compel, and HFG then moved for permission to allow a third party to create images of Weekley’s hard drives. The third party service would search the hard drive images for certain key terms and Weekley would have the opportunity to review the results and designate information that was irrelevant or privileged. The court granted HFG’s second motion and the appellate court affirmed that decision.

The Texas Supreme Court used Weekley to clarify the procedures for producing electronically stored information. The court’s holding relied heavily on federal jurisprudence regarding e-discovery. Though Texas Rule of Civil Procedure 196.4 predates the federal e-discovery rules, federal case law is far more developed.

To discover electronically stored information under Texas Rule 196.4:

1.  The party seeking to discover electronic information must make a specific request for that information and specify the form of production.

If the party seeks deleted e-mails, it should request them expressly and specifically.

2.  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.”
 
3.  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.
 
4.  The parties should make reasonable efforts to resolve the dispute without court intervention.
 
5.  If the parties are unable to resolve the dispute, either party may request a hearing on the objection, at which the responding party must demonstrate that the requested information is not reasonably available because of undue burden or cost.
 
6.  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.

To make this showing, the requesting party must show it is knowledgeable about the storage devices to be searched, the production could reveal deleted materials, the deleted materials could be recovered, and how that recovery would be performed.

7.  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. The requesting party must also pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.
 
8.  And 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.

The basis of the Supreme Court’s decision in Weekley was based on the facts that HFG did not request explicitly deleted e-mails, did not show its experts were qualified to perform the search on Weekley’s machines, or that retrieval of deleted material was reasonably likely.

In addition to the court’s procedural list, the Supreme Court’s opinion also provided practice tips when pursuing e-discovery. As with federal practice, the parties are encouraged to meet early in a case to discuss e-discovery matters. During discovery, a party should develop evidence regarding the other party’s hardware and software so that the requesting party’s experts can confirm that they are familiar with the system. The court also encouraged the practice of sampling–in which a test search is done on a limited scope–to demonstrate feasibility of retrieval. And finally, although Weekley cannot begin to address all the questions raised by e-discovery practice, the case demonstrates that Texas courts may draw upon federal jurisprudence for answers to novel questions.
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¹ In re Weekley Homes, L.P., No. 08-0836 (Tex. Aug. 28, 2009).