If you have ever visited Texas, you know that everything there is “bigger,” including the belt buckles and bar-b-que. Apparently, there is an exception for e-discovery. As hi-tech litigators are well aware, the December 1, 2015 amendments to the Federal Rules of Civil Procedure (“FRCP”) amended Rule 26(b)(1) to require that discovery be “proportional to the needs of the case.” Recently, the Texas Supreme Court emphasized that e-discovery under the Texas Rules of Civil Procedure (“TRCP”) aligns with — and does not surpass — these federal proportionality requirements.
On May 26, 2017, the Texas Supreme Court unanimously decided In re State Farm Lloyds, No. 15-0903, 2017 WL 2323099 (Tex. May 26, 2017), denying without prejudice a petition for mandamus that addressed the production format of electronically-stored information. The producing party sought to produce files in “static” form, which could include PDF, TIFF, or JPEG — essentially images of the original files. Id. at *2-3. The requesting party wanted the files produced in “native” form, which could include XLS for Microsoft Excel and DOC for Microsoft Word documents. Id. at *2. In some situations, “static” form documents are cheaper to produce than the “native” form documents but lack the “native” form metadata (date created, created by, etc.). Id. In this case, the producing party routinely stored documents in “static” form and to produce the “native” form “would require [the producing party] to engineer a new process . . . and develop an extraction method for the native versions.” Id. at *3.
The trial court ordered production in “native” form and the Texas Supreme Court set the matter for oral argument to address the application of proportionality principles to the production of electronically-stored information. Id. at *4. The Texas Supreme Court then evaluated the proportionality inquiry in light of the seven TRCP proportionality factors that closely mirror the FRCP proportionality factors: 1) likely benefit of the suggested discovery; 2) needs of the case; 3) amount in controversy; 4) parties’ resources; 5) importance of the issues at stake in the litigation; 6) importance of the proposed discovery in resolving the litigation; and 7) any other articulable factor bearing on proportionality. Id. at *8-12; compare Tex. R. Civ. P. 192.4(b), with Fed. R. Civ. P. 26(b)(1). The Court dedicated an entire section in the opinion to underscoring the fact that the “application of proportionality principles in this context aligns electronic-discovery practice under the [TRCP] with electronic-discovery practice under the [FRCP].” Id. at 12. Ultimately, the petition for writ of mandamus was denied without prejudice so the trial court could consider proportionality in the first instance. Less than a week later, the Western District of Washington similarly applied FRCP proportionality principles to the production of electronically-stored information. Or. Granting in Part and Denying in Part Pl.’s Mot. Compel, Bailey v. Alpha Techs. Inc., No. C16-0727, 2017 WL 2378921 (W.D. Wash. June 1, 2017).
While many proportionality disputes in federal court could have been resolved on the grounds that the requested discovery was not reasonably calculated to lead to the discovery of relevant evidence — the old standard — the real-world impact of the “proportionality” requirement continues to remain uncertain. Regardless, unlike many other things in Texas, the scope of e-discovery under the TRCP will likely not be “bigger” or broader than the scope of e-discovery under the FRCP.