If I were involved in a lawsuit in Texas, could I get access to my opponent’s computer’s hard drive?
Maybe. As a threshold to granting access to electronic devices, you (the requesting party) would have to show that the responding party somehow defaulted on its obligation to search its records and produce the data you requested. See In re Shipman, 540 S.W.3d 562, 568-69 (Tex. 2018) citing In re Weekley Homes, L.P., 295 S.W.3d 309, 317 (Tex.2009)(orig. proceeding). Courts do not rely on skepticism or bare allegation that a responding party failed to comply with its discovery duties to grant access to electronic devices, but rather evidence is needed. See In re Shipman, 540 S.W.3d at 568-69.
"On Texas Law" Developments and Commentary on Texas Civil Litigation, Contracts, Trade Secrets, Tortious Interference, and Procedure
Showing posts with label Discovery. Show all posts
Showing posts with label Discovery. Show all posts
Wednesday, July 4, 2018
Saturday, July 12, 2014
Spoliation: Destruction of Evidence
In Texas, what are the standards governing whether spoliation (destruction of evidence) has occurred and a trial court’s discretion to impose a remedy for spoliation?
In Texas, spoliation is an evidentiary concept rather than a separate cause of action. Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998).
The Texas Supreme Court recently clarified the law on this issue. In Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, *2-4 (Tex. July 3, 2014), the Court held “that a spoliation analysis involves a two-step judicial process: (1) the trial court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the court must assess an appropriate remedy. To conclude that a party spoliated evidence, the court must find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. Spoliation findings--and their related sanctions--are to be determined by the trial judge, outside the presence of the jury, in order to avoid unfairly prejudicing the jury by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Accordingly, evidence bearing directly upon whether a party has spoliated evidence is not to be presented to the jury except insofar as it relates to the substance of the lawsuit. Upon a finding of spoliation, the trial court has broad discretion to impose a remedy that, as with any discovery sanction, must be proportionate; that is, it must relate directly to the conduct giving rise to the sanction and may not be excessive. Key considerations in imposing a remedy are the level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the nonspoliating party.”
Additionally, “While the spectrum of remedies that may be imposed range from an award of attorney's fees to the dismissal of the lawsuit, the harsh remedy of a spoliation instruction is warranted only when the trial court finds that the spoliating party acted with the specific intent of concealing discoverable evidence, and that a less severe remedy would be insufficient to reduce the prejudice caused by the spoliation. This intent requirement is congruent with the presumption underlying a spoliation instruction--that the evidence would have hurt the wrongdoer. A failure to preserve evidence with a negligent mental state may only underlie a spoliation instruction in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense.” Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, *4-5 (Tex. July 3, 2014).
In Texas, spoliation is an evidentiary concept rather than a separate cause of action. Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998).
The Texas Supreme Court recently clarified the law on this issue. In Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, *2-4 (Tex. July 3, 2014), the Court held “that a spoliation analysis involves a two-step judicial process: (1) the trial court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the court must assess an appropriate remedy. To conclude that a party spoliated evidence, the court must find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. Spoliation findings--and their related sanctions--are to be determined by the trial judge, outside the presence of the jury, in order to avoid unfairly prejudicing the jury by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Accordingly, evidence bearing directly upon whether a party has spoliated evidence is not to be presented to the jury except insofar as it relates to the substance of the lawsuit. Upon a finding of spoliation, the trial court has broad discretion to impose a remedy that, as with any discovery sanction, must be proportionate; that is, it must relate directly to the conduct giving rise to the sanction and may not be excessive. Key considerations in imposing a remedy are the level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the nonspoliating party.”
Additionally, “While the spectrum of remedies that may be imposed range from an award of attorney's fees to the dismissal of the lawsuit, the harsh remedy of a spoliation instruction is warranted only when the trial court finds that the spoliating party acted with the specific intent of concealing discoverable evidence, and that a less severe remedy would be insufficient to reduce the prejudice caused by the spoliation. This intent requirement is congruent with the presumption underlying a spoliation instruction--that the evidence would have hurt the wrongdoer. A failure to preserve evidence with a negligent mental state may only underlie a spoliation instruction in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense.” Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, *4-5 (Tex. July 3, 2014).
Sunday, March 10, 2013
Procedure for Obtaining Electronic Data During a Lawsuit
How does one obtain electronic data during the course of a lawsuit in Texas?
In many cases today, electronic data is critically important. In most of these cases, each side will want to request electronic data and must also be prepared to provide electronic data that is requested by the opposing party. The primary rule of civil procedure governing the discovery of "information that exists in electronic or magnetic form" is Tex. R. Civ. P. 196.4, which dictates that "the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced."
The Texas Supreme Court has laid out the following steps the parties should follow under Rule 196.4:
1. Prior to promulgating requests for electronic information, parties and their attorneys should share relevant information concerning electronic systems and storage methodologies so that agreements regarding protocols maybe reached or, if not, trial courts have the information necessary to craft discovery orders that are not unduly intrusive or overly burdensome.
2. The party seeking to discover electronic information must make a specific request for that information and specify the form of production. (The request is reasonably specific if the responding party understands the scope of the request before the trial court intervenes. See In re Weekley Homes, L.P., 295 S.W.3d 309, 314-15 (Tex. 2009)).
3. 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."
4. 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.
5. The parties should make reasonable efforts to resolve the dispute without court intervention.
6. 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.
7. 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.
8. 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. See 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. See Tex. R. Civ. P. 196.4.
9. 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.
See In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009).
In many cases today, electronic data is critically important. In most of these cases, each side will want to request electronic data and must also be prepared to provide electronic data that is requested by the opposing party. The primary rule of civil procedure governing the discovery of "information that exists in electronic or magnetic form" is Tex. R. Civ. P. 196.4, which dictates that "the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced."
The Texas Supreme Court has laid out the following steps the parties should follow under Rule 196.4:
1. Prior to promulgating requests for electronic information, parties and their attorneys should share relevant information concerning electronic systems and storage methodologies so that agreements regarding protocols maybe reached or, if not, trial courts have the information necessary to craft discovery orders that are not unduly intrusive or overly burdensome.
2. The party seeking to discover electronic information must make a specific request for that information and specify the form of production. (The request is reasonably specific if the responding party understands the scope of the request before the trial court intervenes. See In re Weekley Homes, L.P., 295 S.W.3d 309, 314-15 (Tex. 2009)).
3. 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."
4. 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.
5. The parties should make reasonable efforts to resolve the dispute without court intervention.
6. 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.
7. 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.
8. 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. See 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. See Tex. R. Civ. P. 196.4.
9. 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.
See In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009).
Saturday, February 23, 2013
Appeal of Overly Broad Discovery Orders
Is a court’s order that compels overly broad discovery appealable?
"An order that compels overly broad discovery is an abuse of discretion for which mandamus is the proper remedy." In re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009) (orig. proceeding). An overbroad request is improper regardless of whether it is burdensome. In re Allstate Cnty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007) (orig. proceeding). A discovery request is "overbroad" when it encompasses "time periods, products, or activities beyond those at issue in the case" and, therefore, is not "reasonably tailored to include only relevant matters." In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 n.1 (Tex. 1999) (orig. proceeding); see also Deere & Co., 299 S.W.3d at 820; In re Graco Children's Prods., 210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding).
"An order that compels overly broad discovery is an abuse of discretion for which mandamus is the proper remedy." In re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009) (orig. proceeding). An overbroad request is improper regardless of whether it is burdensome. In re Allstate Cnty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007) (orig. proceeding). A discovery request is "overbroad" when it encompasses "time periods, products, or activities beyond those at issue in the case" and, therefore, is not "reasonably tailored to include only relevant matters." In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 n.1 (Tex. 1999) (orig. proceeding); see also Deere & Co., 299 S.W.3d at 820; In re Graco Children's Prods., 210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding).
Discovery of Trade Secrets
Assertion of the trade secret privilege.
The party resisting discovery must establish that the information is a trade secret. The burden then shifts to the requesting party to establish that the information is necessary for a fair adjudication of its claims. If the requesting party meets this burden, the trial court should ordinarily compel disclosure of the information, subject to an appropriate protective order. See In re Cont'l Gen. Tire, 979 S.W.2d 609, 613 (Tex. 1998).
The party resisting discovery must establish that the information is a trade secret. The burden then shifts to the requesting party to establish that the information is necessary for a fair adjudication of its claims. If the requesting party meets this burden, the trial court should ordinarily compel disclosure of the information, subject to an appropriate protective order. See In re Cont'l Gen. Tire, 979 S.W.2d 609, 613 (Tex. 1998).
Trade Secrets are Privileged
Trade Secrets Are Accorded Evidentiary Privilege.
Rule 507 Trade Secrets. A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require. Tex. R. Evid. 507 (2012).
Rule 507 Trade Secrets. A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require. Tex. R. Evid. 507 (2012).
Appellate Review of Orders Compelling Disclosure of Trade Secrets
Is a court’s order compelling the discovery of trade secrets appealable?
Yes. Because improper disclosure of a trade secret cannot be adequately remedied on appeal, mandamus relief is appropriate. See In re Union Pac. R.R. Co., 294 S.W.3d 589, 593 (Tex. 2009)(orig. proceeding).
Yes. Because improper disclosure of a trade secret cannot be adequately remedied on appeal, mandamus relief is appropriate. See In re Union Pac. R.R. Co., 294 S.W.3d 589, 593 (Tex. 2009)(orig. proceeding).
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