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.
Showing posts with label Evidence. Show all posts
Showing posts with label Evidence. Show all posts
Wednesday, July 4, 2018
Contract Interpretation
I have a dispute about the meaning of a written agreement. How might a court in Texas go about resolving such a dispute?
Normally, a court will confine its interpretation to the agreement’s text, but a court’s willingness to consider outside evidence will depend on the facts of each case. Typically, the willingness of a court to consider evidence beyond what is stated directly in an agreement depends on the clarity of the agreement’s wording. If the language of an agreement is written in a way that allows for multiple reasonable interpretations of the text, then the agreement is considered ambiguous and thus, outside (i.e.,extrinsic) evidence may be considered in order to determine the meaning of the agreement’s language. However, if the agreement is worded in a way that gives its contents a direct or certain legal meaning, then it is not considered ambiguous and outside evidence cannot be used to inform the court’s interpretation of the agreement. This decision, concerning the ambiguity of an agreement, is made by the court. Nevertheless, there are limitations to the extent to which extrinsic evidence may be considered when reviewing an agreement, even if it is ruled ambiguous. As previously mentioned, outside evidence that is objective in nature may be admitted if an agreement is deemed to be ambiguous, however, it may only be admitted to determine the parties’ intent as expressed in the agreement, and cannot be relied upon to give the agreement a meaning different from the language it imports or to show what the parties probably meant, or could have meant, something other than what their agreement stated. See URI, Inc. v. Kleberg County, 543 S.W.3d 755 (2018) citing Anglo-Dutch Petrol. Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 455,451 (Tex. 2011). The “facts and circumstances” in existence at the time an agreement is executed “may be consulted only to inform the meaning of the language the parties chose to effectuate their accord,” and when interpreting an unambiguous agreement or determining whether an ambiguity exists, courts may not consider the parties’ intent beyond the meaning the agreement’s language reasonably suggests when interpreted in context. See URI, Inc. v. Kleberg County, 543 S.W.3d 755, 763 (2018).
Normally, a court will confine its interpretation to the agreement’s text, but a court’s willingness to consider outside evidence will depend on the facts of each case. Typically, the willingness of a court to consider evidence beyond what is stated directly in an agreement depends on the clarity of the agreement’s wording. If the language of an agreement is written in a way that allows for multiple reasonable interpretations of the text, then the agreement is considered ambiguous and thus, outside (i.e.,extrinsic) evidence may be considered in order to determine the meaning of the agreement’s language. However, if the agreement is worded in a way that gives its contents a direct or certain legal meaning, then it is not considered ambiguous and outside evidence cannot be used to inform the court’s interpretation of the agreement. This decision, concerning the ambiguity of an agreement, is made by the court. Nevertheless, there are limitations to the extent to which extrinsic evidence may be considered when reviewing an agreement, even if it is ruled ambiguous. As previously mentioned, outside evidence that is objective in nature may be admitted if an agreement is deemed to be ambiguous, however, it may only be admitted to determine the parties’ intent as expressed in the agreement, and cannot be relied upon to give the agreement a meaning different from the language it imports or to show what the parties probably meant, or could have meant, something other than what their agreement stated. See URI, Inc. v. Kleberg County, 543 S.W.3d 755 (2018) citing Anglo-Dutch Petrol. Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 455,451 (Tex. 2011). The “facts and circumstances” in existence at the time an agreement is executed “may be consulted only to inform the meaning of the language the parties chose to effectuate their accord,” and when interpreting an unambiguous agreement or determining whether an ambiguity exists, courts may not consider the parties’ intent beyond the meaning the agreement’s language reasonably suggests when interpreted in context. See URI, Inc. v. Kleberg County, 543 S.W.3d 755, 763 (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).
Saturday, February 23, 2013
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).
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