Question: you are a litigator and you have a case with a large amount of potentially relevant documents. You need to see the opposing party's emails and deleted emails. How do you request them pursuant to the rules and make sure you get them? The answer to this query should be easy to determine, but be careful. If it is not done correctly, you may end up empty-handed.

The Texas Supreme Court recently provided some much-needed guidance with regard to the scope and limitations of electronic discovery. There are some clear lessons to be learned regarding requests for electronic data and the methods of retrieving it. Every litigator who intends to practice during the digital age needs to take notice of this important opinion.

In In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009), the Texas Supreme Court granted oral argument to consider Weekley Homes, L.P.'s ("Weekley's") application for mandamus relief from the trial court's order that would permit HFG Enclave Land Interests, Ltd.'s ("HFG's") experts to have direct access to Weekley's employees' hard drives to search for deleted emails. The Texas Supreme Court ultimately held that the trial court abused its discretion in permitting such direct access. According to the court, "[b]ecause the plaintiff failed to demonstrate the particular characteristics of the electronic storage devices involved, the familiarity of its experts with those characteristics, or a reasonable likelihood that the proposed search methodology would yield the information sought, and considering the highly intrusive nature of computer storage search and the sensitivity of the subject matter, we hold that the trial court abused its discretion."

In order to clearly understand the implications of this holding and its lessons, the facts of the underlying case must be provided for context. In the underlying case, Weekley, a homebuilder, entered into an agreement ("Builder Contract") with Enclave at Fortney Branch, Ltd. ("Enclave"), a real estate developer, in which Weekley agreed to purchase developed lots in a subdivision over a set period of time. After Weekley purchased some of the lots, Enclave sold the remaining lots to HFG and assigned its rights to those lots to HFG. Under this purchase contract and the assignment, Weekley would then be obligated to purchase the remaining lots from HFG under the original Builder Contract. However, prior to the sale of those lots to HFG by Enclave under the purchase contract, Weekley provided express representations, warranties and covenants in an Estoppel Certificate to HFG about the state of Enclave's performance up to that point. HFG maintained that it relied on Weekley's express representations in the Estoppel Certificate when it decided and agreed to purchase the remaining lots from Enclave under the purchase contract.

HFG subsequently filed suit against Enclave for failure to perform various obligations under the purchase contract. HFG subpoenaed documents from Weekley, which indicated that Weekley had made numerous misrepresentations to HFG when Weekley provided the express representations in the Estoppel Certificate. HFG then added Weekley to the suit and alleged, inter alia, that Weekley fraudulently induced HFG to enter into the purchase contract with Enclave. HFG sent Weekley requests for production of emails sent between HFG and Enclave. In response to its request, HFG received only a few emails; however, one of the produced emails referred to a third-party engineering analysis that predated the Estoppel Certificate and purchase contract. The engineering analysis concerned the existence of "multiple unsafe subdivision lots that required remedial measures." Weekley subsequently produced the engineering analysis, but did not produce any additional emails or communications with Enclave discussing it. HFG was unconvinced and suspected that there was more than one withheld email discussing the engineering analysis.

HFG moved to compel Weekley to "search for any emails stored on servers or back up tapes or other media" concerning the engineering analysis. Weekley provided evidence at the hearing that it was company policy for its employees to delete emails periodically to ensure that their email accounts would be able to receive new emails. Additionally, Weekley presented evidence showing that while deleted emails are saved on backup tapes, they are only saved for a period of thirty days. Based on this evidence, the trial court denied HFG's motion to compel. HFG then filed a motion for limited access to Weekley's computers and its employees' hard drives. Specifically, HFG moved for access, at its own expense, to have its forensic experts examine and create forensic images of Weekley's employees' hard drives. According to the motion, once the images were created, the experts would then search the images for deleted emails concerning the engineering analysis and, after any such emails were discovered, Weekley would then have the opportunity to review those deleted emails and would be obligated to produce responsive information that was not being withheld on the basis of privilege. The motion provided that should HFG, its counsel, or its experts incidentally observe privileged or confidential information, such information would be held in the strictest confidence and its disclosure would be punishable by penalties and contempt of court.

Weekley maintained that such a procedure would be overly intrusive and would allow HFG's experts access to "private conversations, trade secrets, and privileged communications" stored on the employees' hard drives. Additionally, Weekley complained that "requiring its employees' hard drives to be 'taken out of commission' for imaging would be burdensome and disruptive" and "that HFG failed to show the feasibility of 'obtaining data that may have been deleted'…using the protocol set forth in the Motion." However, the trial court granted HFG's motion for limited access to Weekley's computers and its employees' hard drives. Weekley sought mandamus relief at the court of appeals, was denied, and the Texas Supreme Court granted oral argument to determine whether the trial court abused its discretion by "allowing forensic experts direct access to Weekley's employees' electronic storage devices [hard drives] for imaging and searching."

The Texas Supreme Court noted that TRCP 196.4 "applies specifically to requests for production of 'data or information that exists in electronic or magnetic form.'" According to the court, TRCP 196.4 provides that, "[t]o obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced." Weekley argued that HFG failed to comply with Rule 196.4 because it never specifically requested production of "deleted emails." HFG maintained that emails, and deleted emails, did not fall under the purview of Rule 196.4; but rather, that requests for such were governed by the general rules of discovery. The court held that emails and deleted emails that are stored in electronic form, and not printed out, are "clearly 'electronic information'" and subject to the specificity requirements of Rule 196.4. The court held that although HFG did not specifically ask for deleted emails, through the course of discovery and the filing of the motion it was clear that HFG was seeking Weekley's deleted emails concerning the engineering analysis. As such, the court held that Weekley was "not prejudiced by HFG's failure to follow the rule and the trial court did not abuse its discretion by ordering production of the deleted emails."

LESSON: To avoid any confusion or unnecessary court intervention, when you are seeking the production of any electronic data or electronic information, you should specifically identify what you are seeking and specifically identify how you want it produced. This includes emails and deleted emails. If you seek the production of deleted emails concerning a particular subject, you should specifically request it in accordance with TRCP 196.4. After requesting the electronic data and information with specificity, you should contact the responding party and discuss the particularities of that party's electronic storage system so that you can assess the feasibility and method of obtaining the information. You may, however, have to get this information through formal discovery tools such as interrogatories, requests for production, and depositions.

Weekley next argued that the trial court abused its discretion by allowing HFG's experts access to Weekley's employees' hard drives in search of "deleted emails that may no longer exist." According to Weekley, in order to allow such an invasive procedure, HFG would be required to show "good cause or bad faith, together with some evidence that the information sought exists and is retrievable." The court looked again to TRCP 196.4 for guidance. The court noted that when a request for electronic information is made, the responding party must "either produce responsive electronic information that is 'reasonably available to the responding party in its ordinary course of business,' or object on grounds that the information cannot through reasonable efforts be retrieved or produced in the form requested." After an objection, either party may then move for a hearing where the responding party must present evidence to support the objection.

According to the Texas Supreme Court, the trial court determines whether information is reasonably available in the ordinary course of business on a case by case basis. To make this determination, the trial court can compel the responding party to sample the sources that may contain the requested information in order to determine what burdens and costs might be involved in producing that information. The trial court can also order depositions of persons who are familiar with the responding party's information systems. If the responding party fails to establish the validity of the objection, the trial court may order the production of the requested information. However, even if the responding party meets its burden of showing that the requested information is not reasonably available in the ordinary course of business or that the information cannot be reasonably retrieved or produced in the form requested, the trial court may still "order targeted production upon a showing by the requesting party that the benefits of ordering production outweigh the costs." According to the Texas Supreme Court, when the trial court orders production of "not-reasonably-available information, the court must 'also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information."

Although the Texas Rules of Civil Procedure do not expressly require a showing of "good cause" before a court may order the production of not-reasonably-available electronic information, the Texas Supreme Court noted that both the federal rules and the Texas rules require the trial court to weigh the benefits of production versus the burdens imposed when the information requested is not reasonably available in the ordinary course of business. The court added that "[p]roviding access to information by ordering examination of a party's electronic storage device is particularly intrusive should be generally discouraged, just as permitting access to a party's file cabinets for general perusal would be."

LESSON: Since the courts are rarely going to allow direct access to electronic storage devices such as hard drives to search for deleted information, you should put the party on notice as soon as possible of your intent to seek electronic information and that party's need to preserve it. If that party is not on notice of your desire for the information, the party may have policies in place that allow it to destroy or delete the electronic information and you may never be able to retrieve the information.

Additionally, the court looked to federal case law and provided that even if the requesting party is able to make a showing that the benefits of direct access outweigh the burdens, "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." Further, the court held that the requesting party must become familiar with the details and intricacies of the "storage devices sought to be searched in order to demonstrate the feasibility of electronic retrieval in a particular case."

LESSON: Direct access is only going to be permitted through a qualified expert. If you seek such access, you will need a forensic data retrieval expert, or experts, that are capable of the search. Additionally, since you must show feasibility and that the benefits outweigh the burdens, you will likely need to conduct some initial discovery regarding the characteristics of the particular storage device that you want searched. In any event, you and your expert(s) will need detailed familiarity with the other party's electronic storage devices and systems before any access will be allowed.

The court also looked again to federal law and adopted the stance that the trial courts should also consider, as a factor when weighing the benefits and burdens of allowing direct access to electronic storage devices, whether there is a direct relationship between the storage device and the claim. The court cited to several federal court cases where direct access to electronic storage devices was permitted by qualified experts, and pointed to the direct relationship between the claims and the storage devices in each case. For example, in one case cited by the court, a company was allowed direct access, through its expert, to its former employees' hard drives based on allegations that the former employees improperly downloaded and stored confidential and proprietary information on their computers. The Texas Supreme Court noted the close relationship between the plaintiff's claims and computer equipment itself in the federal cases where such direct access was allowed. However, according to the court in Weekley, HFG's claims did not have a direct relationship to the storage devices sought to be searched. While this was not dispositive of the issue, it was a factor that did not weigh in HFG's favor.
According to the Texas Supreme Court, HFG was unable to make the "showing that a search of Weekley's employees' hard drives would likely reveal deleted emails or, if it would, that they would be reasonably capable of recovery." It was fatal that HFG was unable to demonstrate that the information it sought was actually retrievable, given Weekley's particular email storage policies and storage devices. According to the court, this made it "impossible to determine whether the benefit of the forensic examination the trial court ordered outweighs the burden that such an invasive method of discovery imposed." The court also noted that over two years had passed since the time of any relevant emails were created and when HFG requested them, which was a complicating factor according to the court.

LESSON: If you want direct access to a party's electronic storage device, and have a qualified expert ready to search for electronic data, you also must be able to show the court that you will likely be able to recover the information sought. In order to make this showing, you will absolutely need to be familiar with the other party's methodologies for storing and retaining electronic information and its electronic storage equipment. You will also need to show that your expert is familiar with the equipment, the methodologies, and that he or she will likely be able to retrieve the information sought. Without the requisite showing, the court will likely not allow your expert direct access to an opponent's electronic storage device.

Ultimately, in Weekley, the court held that HFG was unable to show a reasonable likelihood that a search of Weekley's employees' hard drives would reveal the deleted emails from over two years previous concerning the engineering analysis. The court also held that there was not a direct link between HFG's claims and the information that HFG sought to obtain from the hard drives. Additionally, the court held that HFG did not present any evidence that its forensic experts were qualified to perform the search ordered by the trial court "given the particularities of the storage devices at issue, or that the search methodology would likely allow retrieval of relevant deleted emails." The Texas Supreme Court held that the trial court abused its discretion by allowing HFG to have direct access to Weekley's employees' hard drives. The court granted mandamus relief in favor of Weekley.

In conclusion, the Weekley opinion finally provides some guidance from the Texas Supreme Court with regard to the law applicable to electronic discovery. It is clear that the law discourages direct access to another party's electronic files. However, if you follow the lessons taught in Weekley, you may be allowed limited access through your qualified expert(s) if you are able to become familiar with the other party's electronic storage equipment, its particular characteristics, and the other party's methodologies for storing electronic data. Only through such familiarity will you be able to make the requisite showings: that the benefits outweigh the burdens, that your expert(s) will likely be able to retrieve the information sought, and that it will be accomplished through the least intrusive methods.

Benny Agosto, Jr. is a name partner in the law firm of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend. Brant J. Stogner is an associate with the firm.