How Far Is Too Far in E-Discovery?

In oral arguments last week, the Texas Supreme Court wrestled with how far courts should go in allowing electronic discovery.

In Re: Weekley Homes LP raises an issue of first impression for this state's Supreme Court: Can a trial court order one litigant in a civil suit to provide a court-appointed computer forensic expert access to its computer hard drives for mirror imaging and searching, if the opposing side pays the costs?

During arguments in the writ of mandamus action, the justices grilled the attorneys for Weekley Homes, a defendant in the underlying suit, and HFG Enclave Land Interests, the plaintiff in that suit.

Former state Supreme Court Justice Craig Enoch, Weekley's appellate attorney, had barely begun his argument on March 31 when the questions began. The first question led to a discussion of the Texas Rules of Civil Procedure before circling back to the issue of first impression.

"Can you envision a type of case where an entire hard drive would be required to be produced?" Justice David Medina asked.

Enoch said no -- because he doesn't believe the state's discovery rules allow it.
The two sides disagree over whether HFG filed its motion for limited access to Weekley's computers under the proper Texas Rule of Civil Procedure.

HFG sought limited access to Weekley's computer hard drives under TRCP 192, which outlines permissible discovery, such as requests for disclosure and requests for entry onto real property.

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Source: Law.com
By: Mary Alice Robbins