A recent eDiscovery case out of Texas, In re Pinnacle Engineering, concluded “that the trial court had abused its discretion in ordering access to forensic copies of the Defendants’ (“Relators”) computers and network server hard drives.”

The 11 page opinion is a response to Relators’ petition for writ of mandamus where Relators challenged the trial court’s order “requiring that they turn over certain computer and network server hard drives and native-format documents.”  The petition asserted that  

“the trial court abused its discretion by compelling discovery without the required evidentiary showing or procedural protections, including “restrictions, limitations or instructions as to what may be done with [their] electronic storage devices or the data.”  See In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009).”

The Texas Appellate Court agreed and conditionally granted the petition.

Relators terminated Raymond G. Houde.  Houde sued for, among other things, breach of contract.  Relators counterclaimed against Houde for, among other things, fraud.  “At the center of the parties’ dispute [we]re allegations that Houde misrepresented his educational background when he [was hired].”  The issues with the trial court’s order centered around Houde’s requests for production of Relators hard drives.

As regular IT-Lex readers may be aware, the courts are generally reluctant to allow a requesting party open access to the other party’s documents, and there are usually some conditions that must be satisfied. To that end, the appellate court pointed out a whole series of “deficiencies in the trial court order”.

First, specific request for correspondence, documents, and emails is required by  

“Rule 196.4, which applies specifically to discovery of “data or information that exists in electronic or magnetic form,” [and] requires that the requesting party . . . “specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced.” TEX. R. CIV. P. 196.4.”

Second, production of the computer and network hard drives must withstand In re Weekley Homes analysis which requires courts to impose reasonable limits on production.

Third, default on discovery obligations must also succumb to In re Weekley Homes analysis which

“requires that the requesting party show that the responding party’s production “has been inadequate and that a search of the opponent’s [electronic storage device] could recover deleted relevant materials.” Id.”

Fourth, feasibility of retrieval must be demonstrated by the requesting party.  “See In re Stern, 321 S.W.3d at 846.”

Fifth, expert qualifications must meet In re Weekley Homes standards requiring Houde  

“to demonstrate that his expert is familiar with the particularities of relators’ computer and network server hard drives, he is qualified to search those hard drives, and the expert’s proposed search methodology is reasonably likely to yield the information that he seeks. 295 S.W.3d at 321

Sixth, privilege, privacy and confidentiality concerns must be addressed and the order should provide guidelines “as to how Houde’s expert would protect relators’ privacy and confidentiality or handle privileged documents.”

Finally, appropriate limitations should have been provided for, such as “search parameters limiting access to personal and confidential information that has no possible relevance to the pending litigation.”

Allowing full access to a party’s file cabinets – both virtual and otherwise – for “general perusal” is intrusive and discouraged just like compelling access to “information by ordering examination of a party’s electronic storage device.”  This is a good case to remember when analyzing the defensibility of an order or deciding whether to seek such an order.