|March 17, 2014|
Previously published on March 3, 2014
Texas was the first state to enact a discovery rule concerning electronically stored information. Texas Rule of Civil Procedure 196.4 addresses the right to discover electronically stored information, the scope of such discovery, the form of production, and cost shifting. Unlike the Federal Rules, a requesting party must specifically request production of electronically stored data.
The Texas Supreme Court articulated a protocol for litigants seeking direct access to opponent's data. In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009):
&smbull; The party seeking to discover electronic information must make a specific request for that information and specify the form of production. For example, a party specifically should request the production of files located on backup tapes, rather than relying on a request for “all electronic documents” to cover these types of files. Tex. R. Civ. P. 196.4.
&smbull; 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. While there is no bright-line rule for what is considered reasonably available, requests for backup tapes, deleted files, direct access to hard-drives and other requests that might require a business to suspend the normal operation of its computer systems likely does not fall into this category.
&smbull; 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.
&smbull; The parties should make reasonable efforts to resolve the dispute without court intervention. Tex. R. Civ. P. 191.2.
&smbull; 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).
&smbull; If the trial court determines the requested information is not reasonably available, the court may still order production upon a showing by the requesting party that the benefits of production outweigh the burdens imposed.
&smbull; 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.
&smbull; 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 are extremely cautious to guard against undue intrusion.