In re Weekley Homes: Procedures for Electronic Discovery

On a petition for Writ of Mandamus, the Texas Supreme Court handed down its opinion in In re Weekley Homes, L.P., a case involving electronic discovery. While the opinion, itself, demonstrates some of the pitfalls of discovery in the trial practice, Justice O'Neill's summary of the proper procedures for electronic discovery make the case a good read. Below is her summary of the proper procedures for Texas trial lawyers regarding electronic discovery under Rule 196.4:

  • The party seeking to discover electronic information must make a specific request for that information and specify the form of production. Tex.R.Civ.P. 196.4.
  • 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." Id.
  • If "the responding party cannot -- through reasonable efforts -- retrieve the date or information requested or produce it in the form requested," the responding party must object on those grounds. Id.
  • The parties should make reasonable efforts to resolve the dispute without court intervention. Tex.R.Civ.P. 191.2.
  • If the parties are unable to resolve the dispute, either party must request a hearing on the objection, Tex.R.Civ.P. 193.4(a), at which the responding party must demonstrate that the requested information is not reasonably available because of undue burden or cost, Tex.R.Civ.P. 192.4(b).
  • 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, against subject to Rule 192.4's discovery limitations.
  • 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. 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. Tex.R.Civ.P. 196.4.
  • 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.

Justice O'Neill also suggests that the parties share, prior to formal discovery, information on the kinds and types of electronic storage and systems that will be involved in the litigation. She also writes that parties, under the rules, are allowed to take the depositions of people with knowledge of the electronic systems of the opposing party so that subsequent discovery can be narrowly tailored to the electronic issues involved in the case. And, finally, she says that the burden is on the requesting party to tailor discovery specifically to deleted emails if deleted emails are what that party is searching for.

Read the opinion here - Weekley Homes.