CHAPTER 8 - 8-6 Electronic Discovery

• Jurisdiction: United States

8-6 Electronic Discovery

In 1999, Texas became the first state in the nation to adopt a rule—Texas Rule 194.6—that expressly and exclusively addresses data or information existing in electronic or magnetic form ("electronically stored information" or "ESI") as a distinct category of discoverable information. Texas Rule 194.6 predated the Federal Rule amendments in that regard by more than six years. Without the guidance of any existing rules on the discovery of ESI and with very few cases pertaining to ESI, the Texas Rule 196.4 sets forth the requirements for requesting ESI, responding to such requests, and issuing orders requiring more than reasonable efforts to produce requested ESI:¹⁹⁵ It provides:

To obtain discovery of data or information that exists in electronic or magnetic form, 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 responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. 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 state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.¹⁹⁶

Although Texas Rule 196.4 has not been amended since its adoption, Texas case law has construed it to keep Texas's electronic-discovery standards consistent with the more rapidly developing federal standards.¹⁹⁷ Thus, even though Texas Rule 196.4's text differs somewhat from the text in Federal Rules 26 and 34 that addresses ESI, federal case law on the comparable Federal Rule text is instructive for electronic-discovery disputes in Texas proceedings.

8-6:1 Electronic Discovery Procedure

Although Texas Rule 196.4 applies to the discovery of all ESI, and such discovery is now commonplace in civil litigation, it took ten years for a case involving Texas Rule 196.4's application to reach the Texas Supreme Court.

The seminal Texas Supreme Court opinion about the Rule's scope and procedure is In re Weekley Homes, L.P.¹⁹⁸ In that case, the Court considered the trial court's discovery order requiring four employees of a defendant to produce their computer hard drives to a forensic expert to image, copy, and search for deleted emails.¹⁹⁹ The Court ultimately held that mandamus relief was appropriate because the trial court abused its discretion in entering the order.²⁰⁰ After analyzing Texas Rule 196.4 and the comparable federal electronic-discovery rules, the Court established the following procedure for requesting and producing ESI under Texas Rule 196.4:

• The party seeking to discover ESI must make a specific request for that information and specify the form of its production.²⁰¹

• The responding party must then produce any ESI that is "responsive to the request and . . . reasonably available to the responding party in its ordinary course of business."²⁰²

• If "the responding party cannot—through reasonable efforts—retrieve the data or information requested or produce it in the form requested," it must object on those grounds.²⁰³

• The parties should make reasonable efforts to resolve the objections without court intervention.²⁰⁴

• If the parties are unable to resolve the dispute, either party may request a hearing on the objections.²⁰⁵ The responding party has the burden of demonstrating that the requested ESI is not reasonably available because of undue burden or cost.²⁰⁶

• If the trial court determines the requested ESI 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, subject to the general discovery limitations set forth in the Texas Rules.²⁰⁷

• If the benefits are shown to outweigh the burdens of production and the trial court orders production of ESI that is not reasonably available, sensitive information should be protected and the least intrusive means should be employed.²⁰⁸ The requesting party must also pay the reasonable expenses of any extraordinary steps required to retrieve and produce the ESI.²⁰⁹

• Finally, when determining how the sources should be searched and ESI produced, direct access to another party's electronic storage device is discouraged, and the trial court should be extremely cautious to guard against undue intrusion.²¹⁰

In 2017, the Texas Supreme Court reentered the fray of electronic discovery and adopted a "proportionality inquiry" "[w]hen a reasonably usable form [of ESI] is readily available in the ordinary course of business" and the trial court must determine "whether any enhanced burden or expense associated with a requested form [of ESI] is justified when weighed against the proportional needs of the case."²¹¹

Finally, in 2018, the Texas Supreme Court revisited the procedure for requesting ESI and the standards governing direct access to another party's electronic storage device and, in doing so, reinforced the applicable guidelines that it established nine years earlier in In re Weekley Homes.²¹² The guidelines are discussed in Chapter 8, sections 8-6:3 and 8-6:7.

8-6:2 Parties' Responsibility to Confer

Parties have a responsibility to communicate with one another about the scope of discovery requests for ESI.²¹³ It is prudent to prepare for e-discovery as soon as practicable in a proceeding. Often this should occur before conferring with the opposing party to identify: the methods of organization; persons who might possess relevant ESI; locations of ESI; and its accessibility. In addition, counsel should be able to explain if the ESI is not reasonably accessible and the extraordinary measures and cost associated with accessing said ESI.

The earlier discussions with the opposing party occur in the discovery process, the better.²¹⁴ That is, "prior to promulgating requests for [ESI], parties and their attorneys should share relevant information concerning electronic systems and storage methodologies so that agreements regarding protocols may be reached."²¹⁵ Certainly, "[o]nce a specific request [for ESI] is made the parties can, and should, communicate as to the particularities of a party's computer storage system and potential methods of retrieval to assess the feasibility of their recovery."²¹⁶

8-6:3 Requests for Electronic Discovery

Requests for production of ESI must be in writing—an oral request "is not a permissible discovery device."²¹⁷ Under Texas Rule 196.4, a request to obtain discovery of ESI must satisfy two requirements:²¹⁸ (1) the request must specifically describe the ESI sought;²¹⁹ and (2) the request must specify the form in which the requesting party wants the ESI produced.²²⁰ "The purpose of [Texas] Rule 196.4's specificity requirement is to ensure that requests for [ESI] are clearly understood and disputes avoided."²²¹ With that purpose in mind, the Texas Supreme Court has held that a failure to adhere to the specificity requirement will not be fatal to a request for ESI if the request is "'clearly understood'" before trial-court intervention and, as a result, the responding party is not prejudiced by the "'failure to follow the [R]ule.'"²²² Thus, for example, it may suffice for the requesting party to specify the ESI sought in a motion to compel.²²³ The better practice, however, is to comply with Texas Rule 196.4's specificity requirement when possible, to reduce the odds of a dispute.

Among the ESI that may be requested are deleted documents, including emails and backup tapes or records.²²⁴ It is also permissible to request metadata, which the Texas Supreme Court has defined as "information describing the history, tracking, or management of an electronic file."²²⁵ Courts across the United States disagree about whether and when metadata associated with electronic documents falls within discovery's scope.²²⁶ As discussed in Chapter 8, section 8-6:5, metadata's discoverability is determined on a case-by-case basis in Texas courts. Practitioners should always check the local rules and the applicable court's or judge's specific requirements (such as standing orders) for additional guidance.

8-6:4 Responding to Requests for Electronic Discovery

In response to production requests for ESI, a party must produce the ESI in the form specifically requested unless the party timely objects or asserts a privilege in compliance with the Texas Rules.²²⁷ As explained in Chapter 8, section 8-4:3.1, in responding to a request for ESI, a party does not have to create electronic documents that never existed.²²⁸ Rather, as explained in this Chapter, when a specific request for ESI has been served, Texas Rule 196.4 "requires a responding party to either produce [ESI] that is reasonably available to [it] in its ordinary course of business, or object on the grounds that the information cannot through reasonable efforts be retrieved or produced in the form requested."²²⁹

"Because parties' electronic systems, electronic storage, and retrieval capabilities will vary," Texas courts must assess whether requested ESI is "reasonably available in the ordinary course of business" on a case-by-case basis.²³⁰ To do so, the trial court may order additional discovery, such as "requiring the responding party to sample or inspect the sources potentially containing information identified as not reasonably available."²³¹ Depositions of witnesses knowledgeable about the responding party's information systems may also be permitted.²³²

8-6:5 Proportionality Inquiry and Case-by-Case Balancing Test

Although Texas Rule 196.4 requires the requesting party to specify the form in which it wants responsive...