On August 28, 2009, in In re Weekley Homes, L.P., a unanimous Texas Supreme Court rejected a plaintiff’s discovery request to perform a forensic examination on certain defendant’s employee’s computer servers and hard drives in an effort to discover emails the plaintiff believed had previously been deleted by the defendant’s employees. Specifically, the plaintiff in the underlying case sought to "search for any emails stored on servers or back up tapes or other media, [and] any email folders in the email accounts of [the Employees]." The plaintiff sought to perform this forensic exam after it believed the defendant had not produced everything that still may have been on the employees’ hard drives.
According to the Court, the plaintiff "relied primarily upon discrepancies and inconsistencies in Weekley’s production" in support of its argument for the forensic exam. In sum, the plaintiff simply did not believe the defendant had produced everything that may be responsive to its discovery requests. The defendant, Weekley Homes, L.P., objected to the proposed forensic exam on a number of grounds, including the invasive nature of the procedure proposed by the plaintiff and the possibility of confidential, privileged and trade-secret information being disclosed.
While the Court did not say a forensic exam of a party’s servers and hard drives is impermissble, the Court did (for the first time) set forth the standard trial court’s should follow when deciding whether or not to order such a forensic exam. Specifically, a party must now essentially make a "good cause" showing before a trial court should order a forensic exam of a party’s servers and hard drives. The Court said that "providing access to information by ordering examinatino of a party’s electronic storage device is particularly intrusive and should be generally discouraged", absent a showing of good cause.
So, what is "good cause"? According to the Court, a party seeking to perform a forensic exam of a party’s servers and hard drives would need to show (1) an expert proposed by the party seeking the forensic exam is qualified to perform the exam; (2) the expert is familiar with the particularities of the computer drives sought to be examined; and (3) the proposed methodology for searching the computer drives is "reasonably likely" to yield the information sought. Because the record did not support the foregonig requirements, the Court held the trial court abused its discretion in allowing the forensic exam.
There are several other interesting aspects to this case, including a discussion of the In re Honza opinion from the Waco Court of Appeals, which was the first case in Texas to discuss the procedures that may be used by trial court’s in ordering forensic exams of computers. Given the amount of email and other electronic information that parties rely upon every day for the business and practice, the In re Weekley Homes, L.P. case is a must read for Texas litigation counsel.
See In re Weekley Homes, L.P., 2009 WL 2666774 (Tex. Aug. 28, 2009)