Discovery of Computer Memory & Data Storage

Discovery of Data Storage Austin Texas Lawyer

Apr 8, 2013 — by Jeff Mundy
Tags: Discovery

 

Discovery of Electronic Data or Information

Relators argue that the trial court abused its discretion in entering its December 18, 2012 amended order because Houde did not make a specific request for the electronic data and did not show that relators defaulted on their discovery obligation, their production was inadequate or Houde could recover relevant information, his expert is qualified, or the recovery of relevant information is feasible.*fn4 Relators assert that the trial court's order effectively gives Houde's expert, who is not identified in the order, "carte blanche to rummage through [relators'] storage devices in violation of Weekley" and has not imposed reasonable limits addressing privilege, privacy and confidentiality. In re Weekley Homes, 295 S.W.3d 309; see also TEX. R. CIV. P. 196.4.

Specific request for correspondence, documents, and emails Relators first assert that Houde did not make a specific request for the electronic data as required by rule 196.4 and In re Weekley Homes, but only for a native electronic format copy of his resume, which relators produced in native electronic form. Houde responds that he specifically requested "the documents and hard drives" and "electronic communications and resumes."*fn5

Rule 196.4, which applies specifically to discovery of "data or information that exists in electronic or magnetic form," requires 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." TEX. R. CIV. P. 196.4. The Texas Supreme Court has held that rule 196.4 requires a specific request "to ensure that requests for electronic information are clearly understood and disputes avoided." In re Weekley Homes, 295 S.W.3d at 314. The responding party must produce the data that is responsive to the request and "reasonably available to the responding party in the ordinary course of business." TEX. R. CIV. P. 196.4.

Houde made requests for the production of the computer hard drives from the laptops, desktops, Dell notebooks, and tablets of Liggett, Townend, and Pete Cruz, as well as the "network server(s) utilized for electronic data" by all three men from 2009 to 2011. These requests did not inform relators of the exact nature of the information sought and do not meet the requirements of rule 196.4. See In re Jordan, 364 S.W.3d 425, 426 (Tex. App.--Dallas 2012, orig. proceeding) (holding that written requests merely asking for computer hard drives are insufficient under rule 196.4). Additionally, we note that Houde's request for the "network server(s) utilized for electronic data" by all three men from 2009 to 2011 does not match the date range for the server hard drive image production ordered by the trial court. The amended order specifies that the image of the network server(s) for PEI and PPSI to be produced is from 2000 to 2006, but Houde's request for production specified network server data for Liggett, Townend and Cruz from 2009 to 2011 only.

Because compelling relators to turn over computer and network server hard drives without requiring Houde to identify specific discovery requests, does not comport with the requirements of rule 196.4 and In re Weekley Homes, we conclude that the trial court abused its discretion in granting the motion to compel.

Production of the Computer and Network Hard Drives

The trial court's December 18, 2012 amended order requires relators to produce to Houde's forensic computer expert images from the hard drives of "any computer(s) used" by Liggett, Townend, and Cruz from December 1, 2000-2006; the network server(s) for PEI and PPSI from December 1, 2000-2006; and the native files for any document purported to be Houde's resume (Bates No. PINNACLE 00011, 000129-134, 000147-149). In this amended order, the trial court added language describing what Houde's forensic computer expert was to look for:

It is ORDERED that Plaintiff's Forensic Computer Expert shall search the images and files listed above for: (1) current or prior versions (including deleted versions) of Mr. Houde's resume; (2) documents and artifacts that contain the same text as these resumes and therefore may have been source materials for the creation of the resumes at issue; and (3) specific email communications relating to the hiring and educational background of Mr. Houde by Defendants prior to 2006. Deleted files and fragments may or may not have a date of activity associated with them; if no date exists with a deleted file or fragment that is a match to the search terms, the deleted file or fragment will be included in the final results without the date filter being applied.

Plaintiff's Forensic Expert shall also investigate for the existence of any wiping software or deletion of files from these systems; recover any files that have been deleted and note whether any time periods or electronic devices were not provided for investigation.

We hold that the trial court's amended order does not comply with the requirements of rule 196.4 concerning the examination of a party's electronic storage devices as outlined in In re Weekley Homes. In In re Weekley Homes, the Texas Supreme Court recognized that "[p]roviding access to information by ordering examination of a party's electronic storage device is particularly intrusive and should be generally discouraged, just as permitting open access to a party's file cabinets for general perusal would be." 295 S.W.3d at 317. The court explained,

As a threshold matter, the requesting party must show that the responding party has somehow defaulted in its obligation to search its records and produce the requested data. The requesting party should also show that the responding party's production 'has been inadequate and that a search of the opponent's [electronic storage device] could recover deleted relevant materials.' Courts have been reluctant to rely on mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties. Even if the requesting party makes this threshold showing, courts should not permit the requesting party itself to access the opponent's storage device; rather, only a qualified expert should be afforded such access, and only when there is some indication that retrieval of the data sought is feasible.

Due to the broad array of electronic information storage methodologies, the requesting party must become knowledgeable about the characteristics of the storage devices sought to be searched in order to demonstrate the feasibility of electronic retrieval in a particular case. And consistent with standard prohibitions against 'fishing expeditions,' a court may not give the expert carte blanche authorization to sort through the responding party's electronic storage device. Instead, courts are advised to impose reasonable limits on production. Finally, federal courts have been more likely to order direct access to a responding party's electronic storage devices when there is some direct relationship between the electronic storage device and the claim itself.

Id. at 317-19 (internal citations omitted). Default on Discovery Obligations

Houde made the assertion in his motion to compel that Relators "to date . . . have not produced any hardcopy paper documents or communications from [10 years ago], and only [relators] and, upon information and belief, their, 'consulting only' computer forensic expert, have been able to view the correspondence that was actually exchanged during that time." Houde also asserted that relators had "gone to great lengths to prevent Houde from examining the most likely place that communications and documents would exist regarding the hiring of Houde - [Relators'] computers and servers."*fn6 However, as the court in In re Weekley Homes explained, "courts have been reluctant to rely on mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties." In re Weekley Homes, 295 S.W.3d at 317-18; see also In re Harris, 315 S.W.3d 685, 700 (Tex. App.--Houston [1st Dist.] 2010, orig. proceeding) (noting that no argument by requesting party that responding party's production had been insufficient is even less than the "mere skepticism or bare allegations" deemed insufficient in In re Weekley Homes).

The Texas Supreme Court has specifically rejected as insufficient similar conclusory statements made by requesting counsel that certain emails "must exist," and it held that such statements do not justify the highly intrusive method of discovery that was ordered by the trial court. In re Weekley Homes, 295 S.W.3d at 317-18, 320. Houde presented no evidence that relator's production has been inadequate or a search of relators' computer and network server hard drives could recover relevant materials. Relators asserted in their responses to Houde's requests for production and motion to compel that they had conducted diligent searches and produced the relevant documents found. Houde's motion made no assertion that relators' counsel's statements were false or made in bad faith. See In re Stern, 321 S.W.3d 828, 845 (Tex. App.--Houston [1st Dist.] 2010, orig. proceeding) (holding that requesting party did not show default when responding party agreed to produce items and requesting party made no showing that representations were false or made in bad faith). And Houde's motion to compel forensic imaging did not provide the showing required in In re Weekley Homes that relators, as the responding parties, have somehow defaulted on their obligation to search their records and produce the requested data. 295 S.W.3d at 317. In re Weekley Homes also requires that the requesting party show that the responding party's production "has been inadequate and that a search of the opponent's [electronic storage device] could recover deleted relevant materials." Id.

Houde further asserted in his motion to compel that relators had refused to provide him access to the native files for two documents purposed to be Houde resumes that were used in depositions. Relators provided evidence in their response to Houde's motion to compel that the native format file had been produced to Houde as an attachment to an email from relators' counsel dated February 9, 2012. Houde did not provide to the trial court controverting evidence that relators had not produced the resume in native format, nor does he direct this Court to any such evidence.

Accordingly, we hold that the trial court abused its discretion in compelling relators to turn over their computer and network server hard drives without requiring Houde to demonstrate that relators defaulted on their discovery obligations or their production had been otherwise inadequate. See TEX. R. CIV. P. 196.4; In re Weekley Homes, 295 S.W.3d at 322.

Feasibility of Retrieval

Even a showing that relators did not search for relevant requested documents does not automatically mean that a search of relators' computer and network server hard drives would likely reveal the documents, or that they would be reasonably capable of recovery. See In re Weekley Homes, 295 S.W.3d at 319-20. The requesting party must demonstrate that data retrieval is feasible. See In re Stern, 321 S.W.3d at 846. The conclusory statements of Houde's counsel in his motion to compel were not enough to justify the intrusive method of discovery ordered by the trial court which gave Houde's forensic computer expert complete access to the entire hard drives of every computer used by Liggett, Townend and Cruz, as well as the PEI and PPSI's network server hard drives. The trial court did not require Houde to demonstrate that relators' electronic information storage methodology would allow the retrieval of these documents, including deleted versions of Houde's resume, or what that retrieval will entail as required by In re Weekley Homes to justify the appointment of a forensic expert to examine the hard drives. 295 S.W.3d at 320.

Houde simply failed to show that retrieval of deleted copies of his resume and the emails was feasible. Accordingly, we hold that the trial court abused its discretion in compelling relators to turn over computer and network server hard drives without requiring Houde to demonstrate that retrieval of deleted copies of Houde's resume and emails prior to 2006 was feasible. See TEX. R. CIV. P. 196.4; In re Weekley Homes, 295 S.W.3d at 322.

Expert Qualifications

Houde represents to this Court that the parties had agreed on "Mr. Price" as the forensic computer expert and this was discussed and agreed upon "by the parties and the trial court during the December 3, 2012 hearing." However, Price is neither identified in the trial court's order, nor were his qualifications to conduct this forensic computer examination on relators' computer and network server hard drives identified in the trial court's order.

Even if Houde had made the requisite threshold showing that relators had not complied with their discovery obligations, the requesting party itself should not be allowed access to the opponent's storage device, but rather only a qualified expert should be given access. See In re Weekley Homes, 295 S.W.3d at 318. Whereas the amended order provides that Houde's forensic computer expert will do the searching on relators' computer and network server hard drives, the expert is not identified and there are no limitations or guidelines provided as to how Houde's expert would conduct the searches for Houde's resume and documents with the same text that might be source materials or email communications prior to 2006. See id. ("[A] court may not give the expert carte blanche authorization to sort through the responding party's electronic storage device."). Houde presented nothing in his motion to show that his expert is qualified to perform the searches on the specific storage devices at issue or the search methodology would likely retrieve the documents, including deleted versions of Houde's resume and emails prior to 2006. Id. at 321; In re Stern, 321 S.W.3d at 847. In re Weekley Homes requires Houde to demonstrate that his expert is familiar with the particularities of relators' computer and network server hard drives, he is qualified to search those hard drives, and the expert's proposed search methodology is reasonably likely to yield the information that he seeks. 295 S.W.3d at 321; see also In re Harris, 315 S.W.3d at 701 (noting that requesting party made no showing which, if any, of responding party's electronic storage devices could be expected to contain requested information). Houde made no such showing in his motion to compel and the trial court's amended order does not contain any such information.

Similarly, Houde has not shown that his forensic computer expert is qualified to investigate the existence of any "wiping" software or the deletion of files on relators' computer and network server hard drives. Houde has not shown that his forensic computer expert is qualified to "recover any files that have been deleted and note whether any time periods or electronic devices were not provided for investigation." Accordingly, we hold that the trial court abused its discretion in compelling relators to produce their computer and network servers hard drives without requiring Houde to identify his forensic computer expert, his qualifications, that the expert is familiar with relators' computer and network server hard drives, and that the expert's search methodology is likely to retrieve the possibly deleted Houde resumes and emails relating to Houde prior to 2006. See TEX. R. CIV. P. 196.4; In re Weekley Homes, 295 S.W.3d at 322.

Privilege, Privacy and Confidentiality Concerns

The trial court's December 18, 2012 amended order did not provide guidelines as to how Houde's expert would protect relators' privacy and confidentiality or handle privileged documents. See In re Weekley Homes, 295 S.W.3d at 318 (courts should "impose reasonable limits on production" and "address privilege, privacy, and confidentiality concerns"). And it did not provide any mechanism through which relators could withhold from discovery any document or information that is privileged or confidential. See id. The amended order does not provide for the creation of a privilege log subject to in camera review by the trial court, nor does it provide for any method for screening such privileged and confidential information. Rather, it permits Houde full access to the computer and network server hard drives. Under the amended order as written, Houde would be allowed to screen any privileged or confidential material on the electronic storage devices, including any computer used by Liggett, Townend and Cruz, even their personal home computers. See In re Clark, 345 S.W.3d 209, 213- 14(Tex. App.--Beaumont 2011, orig. proceeding) (conditionally granting mandamus relief when trial court's order compelling production of computers and electronic storage devices would effectively allow requesting party to screen privileged documents).

Accordingly, we hold that the trial court abused its discretion in compelling relators to turn over their computer and network server hard drives without providing any mechanism through which Relators can withhold from discovery any documents or information that is privileged or confidential. See TEX. R. CIV. P. 196.4; In re Weekley Homes, 295 S.W.3d at 322.

Appropriate Limitations

As noted above, permitting "access to information by ordering examination of a party's electronic storage device is particularly intrusive and should be generally discouraged, just as permitting open access to a party's file cabinets for general perusal would be." In re Weekley Homes, 295 S.W.3d at 317. Here, the trial court ordered the production of the image of the hard drives of "any computer" used by Liggett, Townend and Cruz. As written, the trial court has ordered the production not just of work computers, but also any personal computer used by the men. Even if Houde had made all of the requisite showings of In re Weekley Homes that relators had defaulted on their discovery obligations, retrieval of data was feasible, his expert was qualified, the expert's search methodology would likely retrieve the documents sought, and the expert is familiar with relators' electronic storage devices, a court may still not give the expert "carte blanche" to sort through the responding party's electronic storage device. In re Weekley Homes, 295 S.W.3d at 318. Houde asserts that the trial court's amended order is "narrowly tailored" and constitutes "a specifically targeted forensic examination" directed at the discovery of specific information relevant to his claims and defenses. He further asserts that all of the parties knew that the discovery ruling was limited and directed at specific electronic files. In support of his assertions, Houde attaches email correspondence exchanged between counsel regarding a proposed forensic computer protocol after the December 3, 2012 hearing on his motion to compel. However, nothing in the amended order signed by the trial court contains any limitations on the expert's examination of relators' computer and network server hard drives. The trial court's order does not limit what searches can be conducted or what may be done with any information that is found. It merely requires that a search be conducted for all versions of Houde's resume, any possible source documents, and certain email communications prior to 2006 relating to Houde's hiring and educational background. The trial court's order should have provided search parameters limiting access to personal and confidential information that has no possible relevance to the pending litigation. See In re Clark, 345 S.W.3d at 213.

Direct access to a responding party's electronic storage devices is more likely to be appropriate "when there is some direct relationship between the electronic storage device and the claim itself." In re Weekley Homes, 295 S.W.3d at 317-19 (citing cases where employers sued former employees for misuse of company computers as examples of when close relationship between claims and defendant's computer equipment justified production of the computers themselves). Although Houde suggests that he is justified in gaining direct access because he is a former shareholder of PEI and PPSI, there is no direct connection between his claims and the computers to which he seeks access that could justify the production of images of the computer and network server hard drives.

Accordingly, we hold that the trial court abused its discretion in compelling relators to turn over their computer and network server hard drives without any limitations on Houde's forensic computer expert. See TEX. R. CIV. P. 196.4; In Weekley Homes, 295 S.W.3d at 322.

Inadequate Appellate Remedy

Mandamus relief is available when a trial court compels production of electronic data and information beyond the permissible bounds of discovery. See In re Weekley Homes, 295 S.W.3d at 322; In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998). The trial court's amended order compelling discovery in this case exceeds the permissible bounds of discovery. Moreover, relators have no adequate appellate remedy because an appellate court will not be able to remedy the trial court's error in ordering such an intrusive search without the procedural productions outlined in In re Weekley Homes. See In re Prudential Ins., 148 S.W.3d 124, 135-36.

 

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