September 2009

While I don’t often discuss cases on Texas procedure, In Re Weekly Homes, which was published on August 28, 2009 is worth comment.  Prior to Weekly Homes there had been no guidance from the Texas Supreme Court on electronic discovery and little discussion by Texas intermediate appellate courts.  The opinion addresses a request by a party to inspect the computer hard drives of another during discovery. 

After review of the facts in the case and federal precedent on electronic discovery the Texas Supreme Court ruled:

— 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.

So requests should specify what should be produced and how it should be produced.  If the requested production is going to be expensive, the requesting party has to pay.  Finally, direct access to another party’s electronic devices is discouraged.  Of course, neutral third parties can be used to mirror hard drives or computers.

In the context of non-compete cases where a defendant has started a competing venture,  the departing employee’s hard-drive may hold important information.  The hard-drive may have business plans, incorporation documents, potential customer contacts.  All of these items and more will allow the former employer to determine the chronology of events and potentially develop evidence of theft of trade secrets.  There is more to electronic discovery than email.