Mar 10, 2013
How does one obtain electronic data during the course of a lawsuit in Texas?
In many cases today, electronic data is critically important. In most of these cases, each side will want to request electronic data and must also be prepared to provide electronic data that is requested by the opposing party. The primary rule of civil procedure governing the discovery of "information that exists in electronic or magnetic form" is Tex. R. Civ. P. 196.4, which dictates 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."
The Texas Supreme Court has laid out the following steps the parties should follow under Rule 196.4:
1. Prior to promulgating requests for electronic information, parties and their attorneys should share relevant information concerning electronic systems and storage methodologies so that agreements regarding protocols maybe reached or, if not, trial courts have the information necessary to craft discovery orders that are not unduly intrusive or overly burdensome.
2. The party seeking to discover electronic information must make a specific request for that information and specify the form of production. (The request is reasonably specific if the responding party understands the scope of the request before the trial court intervenes. See In re Weekley Homes, L.P., 295 S.W.3d 309, 314-15 (Tex. 2009)).
3. 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."
4. 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 object on those grounds.
5. The parties should make reasonable efforts to resolve the dispute without court intervention.
6. If the parties are unable to resolve the dispute, either party may request a hearing on the objection at which the responding party must demonstrate that the requested information is not reasonably available because of undue burden or cost.
7. 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, again subject to Rule 192.4's discovery limitations.
8. 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. See 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. See Tex. R. Civ. P. 196.4.
9. 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.
See In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009).