How To Get (Or Avoid) Direct Access To ESI In Discovery

As electronically stored information (ESI) has become central to discovery in many (if not most) cases, litigants often doubt that their opponents can be trusted to thoroughly search their ESI for relevant data. This frequently results in requests for the other side's computers to be imaged and searched—an invasive and expensive undertaking.

In 2009, the Texas Supreme Court decided In re Weekly Homes,¹ providing guidance as to the circumstances under which a trial court could order a party to turn its computers over for examination in discovery under Tex. R. Civ. P. 196.4. The Dallas Court of Appeals recently granted mandamus in In re VERP Investment, LLC,² in which it applied the In re Weekly Homes test and provided a helpful review of the process and procedures by which litigants can seek or defend against forensic imaging and searching of ESI. Direct access to the other side's computers is not routinely available, and requires a specific evidentiary showing.

The Court outlined the following for parties seeking forensic imaging:

• The requesting party must specifically request ESI.
• The requesting party must present evidence that the responding party failed to comply with its discovery obligations—i.e., that it failed to adequately search its data and produce the requested ESI.
• The requesting party must present evidence that a search of the opponent's electronic storage device(s) could recover relevant information.
• The requesting party must present evidence that the benefits of direct examination of the storage device(s) outweigh the burdens.

If the trial court finds forensic imaging appropriate, the court should do one of the following:

• Prescribe detailed search protocols to ensure that only relevant and non-privileged information will be recovered; or
• Order the examination to be conducted by an independent third-party analyst. If a third-party is to be used, evidence must be presented to show that the expert is qualified and that the methodology to be used will be effective to obtain the information sought.

Footnotes

1 295 S.W.3d 309 (Tex. 2009).

2 No. 05-15-00023-CV (Tex. App.—Dallas Feb. 17, 2015, orig. proceeding).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.