in Re Pinnacle Engineering, Inc., Pinnacle Project Services, Inc., Jeffrey A. Ligget, and Terrence F. Townend ( 2013 )

Opinion issued March 12, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-01105-CV
———————————
IN RE PINNACLE ENGINEERING, INC., PINNACLE PROJECT
SERVICES, INC., JEFFREY A. LIGGET, AND TERRENCE F. TOWNEND,
Relators
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2011-07373
OPINION
Relators, Pinnacle Engineering, Inc. (“PEI”), Pinnacle Project Services, Inc.
(“PPSI”), Jeffery A. Liggett, and Terence F. Townend, have filed a petition for
writ of mandamus challenging the trial court’s order in the underlying case1
requiring that they turn over certain computer and network server hard drives and
native-format documents. Relators contend that the trial court abused its discretion
by compelling discovery without the required evidentiary showing or procedural
protections, including “restrictions, limitations or instructions as to what may be
done with [their] electronic storage devices or the data.” See In re Weekley Homes,
L.P., 295 S.W.3d 309 (Tex. 2009). We conditionally grant the petition.
Background
Real party in interest, Raymond G. Houde, and Liggett and Townend were
co-shareholders and employees of two privately-held corporations, PEI and PPSI.
In January 2011, after PEI and PPSI terminated his employment, Houde sued them
for breach of contract, breach of fiduciary duty, shareholder oppression, civil
conspiracy, and declaratory judgment. PEI and PPSI counter-claimed against
Houde for fraud and rescission. At the center of the parties’ dispute are allegations
that Houde misrepresented his educational background when he joined the
companies. Upon termination of his employment, and pursuant to a shareholder
agreement, PEI and PPSI bought back Houde’s shares in the companies.
1
The underlying case is Houde v. Pinnacle Engineering, Inc., No. 2011-07373, in
the 55th District Court of Harris County, Texas, the Honorable Jeff Shadwick
presiding.
2
In May 2011, Houde served requests for production on the various
defendants. Among other things, Houde sought from PEI the production of:
1. All correspondence or other items by and between [PEI] and
Houde prior to October 9, 2003 that mention, concern, or relate to
Houde’s employment or ownership in [PEI].
2. All correspondence or other items by and between [PEI] from
October 9, 2003 to January 17, 2011, that mention, refer or
concern Houde’s employment or ownership in [PEI].
3. All documents reflecting or concerning [PEI’s] investigation of
Houde’s educational background prior to October 9, 2003.
4. All documents reflecting or concerning [PEI’s] investigation of
Houde’s educational background from and after October 9, 2003 to
January 17, 2011.
5. All emails by and between employees of [PEI] that mention,
concern or relate to Houde’s educational background.
6. All emails by and between Jeffrey A. Liggett and Terence F.
Townend that mention, concern or relate to Houde’s educational
background.
Houde made the same or similar requests of PPSI, Liggett, and Townend, seeking
documents and communications relating to Houde’s employment or ownership
interest in PEI and PPSI, Houde’s educational background, and PEI and PPSI’s
investigation into Houde’s educational background. Houde also sought the
production of computer hard drives from the laptops, desktops, Dell notebooks,
and tablets of Liggett, Townend, and Pete Cruz. And he sought the “network
server(s) utilized for electronic data” by all three men from 2009 to 2011. Relators
3
objected, and, after Houde filed a motion to compel discovery in September 2011,
they amended their objections and declared that they had produced the responsive
documents in their possession “after a diligent search.”
Specifically, relators objected to the production of their computer and
network server hard drives, asserting that the requests were overly broad, sought
irrelevant information, sought the production of “privileged, private, confidential
and/or proprietary information”2 and revealed that Houde was attempting “to
rummage through a virtual electronic file cabinet of correspondence, which is an
impermissible fishing expedition that, if permitted, would constitute an abuse of
discretion.”3
The trial court issued orders on October 3, 2011 and January 20, 2012
granting in part Houde’s motion to compel discovery, but sustaining Liggett and
Townend’s objections to Houde’s motions to compel production of their computer
hard drives. As to the requests for the production of computer hard drives and
network server hard drives from PEI and PPSI, the court also issued an order
granting in part Houde’s motion to compel discovery on October 3, 2011 and
January 23, 2012. In both orders relating to PEI and PPSI, the trial court did not
2
See TEX. R. CIV. P. 196.4.
3
In re Weekley Homes, 295 S.W.3d 309 (Tex. 2009).
4
sustain or deny the objections to the production of the computer and network-
server hard drives, but instead noted that “plaintiff withdrew these at the hearing.”
On November 19, 2012, Houde filed a motion to compel the production of
“forensic images of key computers and obtain critical documents in native format
with all associated metadata.” He asserted that this electronic discovery was “key
to the central issue of this case,” he had been unable to obtain the discovery
“despite exhausting all other less intrusive methods of discovery,” “[i]t has become
clear that the only place that information pertaining to this issue can be found is on
Defendants’ electronic storage devices,” and “[d]efendants have failed or refused
to produce communications . . . and refuse to allow Plaintiff to access their
electronic storage devices to search for the requested communications and
documents.” Houde complained that the defendants had not produced any
hardcopy documents from the relevant time period and 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 – Defendants’ computers and
server(s).” He asserted that “only Defendants and, upon information and belief,
their ‘consulting only’ computer forensic expert, have been able to view the
correspondence that was actually exchanged during this time.” As to the native
format of certain documents, Houde asserted that relators had refused to provide
him with access to the native files and associated metadata for copies of two
5
Houde resumes that had been referenced in depositions and motions. In his 2012
motion to compel, Houde asked the trial court to compel relators to produce:
1. a forensic image of the hard drives of the computer(s) used by
Liggett from 2001–2006
2. a forensic image of the hard drives of the computer(s) used by
Townend from 2001–2006
3. a forensic image of the hard drives of the computer(s) used by Pete
Cruz from 2001–2006
4. a forensic image of the network server for Pinnacle
5. native files of all of Houde’s alleged “resumes.”
Houde offered to cover the expense of the forensic examination, and he argued that
the information sought could not be obtained from another source because the
defendants had testified that many documents no longer existed in paper form.
Houde asserted that the electronically stored information would show when the
various resumes and related documents were created and sent to relators,
information that was not available from the production of the physical documents.
After the trial court conducted a hearing on December 3, 2012, it granted
Houde’s motion to compel the production of Liggett, Townend, and Cruz’s
computer hard drives, PEI and PPSI’s network servers, and the native files for any
document purporting to be Houde’s resume within 10 days. Relators then asked
the trial court to stay its order pending resolution of their “Emergency Motion for
Temporary Relief” and Petition for Writ of Mandamus filed in this Court. In his
6
response, Houde asserted that the “actual examination of [the computer images]”
ordered by the trial court was “narrowly tailored,” and he noted that the trial court
had told the parties that the examination was limited to a forensic search for: (1)
current or prior versions (including deleted versions) of Houde’s resume; (2)
documents and artifacts that contain the same text as the resumes, which, therefore,
may have been the source materials for the creation of the resumes at issue; and (3)
specific email communications relating to the hiring and educational background
of Houde sent prior to 2006. Houde sought, “for the sake of clarity,” to have the
trial court sign an amended order “that comports” with its “discussion with the
parties and limitations on the forensic examination imposed” by the trial court
“during the December 3, 2012 hearing regarding Plaintiff’s Motion to Compel
Forensic Images of Computers and Documents in Native Format.”
Relators replied, attaching the affidavit of their attorney, Stewart Hoffer.
They asserted that Houde had inaccurately stated that the “actual examination of
[the computer images] ordered” by the trial court was “narrowly tailored,” the trial
court had actually told the parties “no such thing and never limited the scope of the
investigation,” and the order signed by the trial court “accurately reflects what” the
trial court ordered Liggett, Townend, PEI and PPSI to do.” They also asserted that
their counsel had told the trial court at the hearing that they did not conduct a
forensic investigation for certain communications; they had searched their hard
7
files, “.pst” files, and email server files for any responsive documents which they
produced, and they believed that they had fully complied with the Texas Rules of
Civil Procedure. Relators further asserted that the trial court was not presented
with evidence that they had not produced the native files of all of Houde’s
resumes, which they had produced in hard copy, or not searched email files from
the relevant time periods. They had searched the PEI and PPSI network servers for
all native versions of the Houde resumes that were produced, and they had
produced the native format ten months earlier.
Relators filed in this Court a motion for emergency relief, seeking a stay of
the trial court’s order compelling the production of the computer hard drives,
which this Court granted, and their petition for writ of mandamus, seeking a writ
requiring the trial court to vacate its order. Relators assert that the trial court did
not hear any “evidence” below because it did not admit any exhibits or take live
testimony during the December 3, 2012 hearing.
On December 18, 2012, the trial court conducted a hearing on discovery
deadlines and an upcoming trial setting. Houde offered an amended order which
the trial court signed, vacating its December 3, 2012 order. The trial court ordered
that “images” rather than the actual computer hard drives be produced, and it listed
the specific items that Houde’s forensic computer expert was to search for,
including (1) current or prior versions of Houde’s resume; (2) documents
8
containing the same text as the resumes that might have been source materials for
the creation of the resumes; and (3) specific email communications, sent prior to
2006, relating to Houde’s hiring and educational background. The amended order
also provides that deleted files or fragments without a date that are otherwise a
match are to be included in the final results and Houde’s forensic computer expert
is to investigate for any “wiping” software or deletion of files, recover those files,
and note any time periods or electronic devices that were not provided for
investigation. The trial court also stayed the amended order pending the outcome
of relators’ petition for writ of mandamus.
Relators have filed a supplement to their mandamus petition, asserting that
the trial court’s December 18, 2012 amended order is substantively the same,
constitutes an abuse of discretion, and “fails to cure most of the defects in the
original order.” In his response, Houde asserts that the trial court’s December 18,
2012 amended order reflects the ruling actually made by the trial court on
December 3, 2012 that had been “misunderstood or misrepresented” by relators to
this Court.
Standard of Review
Mandamus is an extraordinary remedy that will issue only to correct a clear
abuse of discretion or a violation of a duty imposed by law when there is no
adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex.
9
2005) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.
2004)); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); In re Taylor, 113
S.W.3d 385, 389 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding). A trial
court abuses its discretion when it acts arbitrarily or unreasonably and without
reference to any guiding rules or principles. See Walker, 827 S.W.2d at 839; In re
Taylor, 113 S.W.3d at 389.
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.4 Relators assert that the trial court’s order effectively gives Houde’s
4
Both parties agree that no record was made of the December 3, 2012 hearing on
Houde’s motion to compel. Houde argues that because relators have not brought
forward a transcript of that hearing, the result is the absence of a complete record
which creates a presumption against relators. However, such a presumption
applies only when the trial court considers evidence at a hearing. See Delgado v.
Kitzman, 793 S.W.2d 332, 333 (Tex. App.—Houston [1st Dist.] 1990, orig.
proceeding). Here, the mandamus record includes the sworn affidavit of relators’
attorney, Stewart Hoffer, who testified that, in reference to the December 3, 2012
hearing, “After all, the trial court neither admitted any exhibits nor took live
testimony during the hearing and, thus, the trial court did not hear any true
‘evidence.’” In place of a transcript of relevant testimony and exhibits introduced
in an underlying proceeding, a party may provide a “statement that no testimony
was adduced in connection with the matter complained.” TEX. R. APP. P.
52.7(a)(2); see also Walker, 827 S.W.2d at 837 n.3 (relator discharges burden by
10
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
filing affidavit that no evidence was presented to trial court); Barnes v.
Whittington, 751 S.W.2d 493, 495 (Tex. 1988) (“The undisputed fact that no
testimony was adduced at any of the hearings, as set forth in the affidavit of
relator’s counsel, satisfies the relator’s burden[.]”). Although Houde makes some
reference in his briefing to this Court to “evidence” considered by the trial court in
deciding the motion to compel, he has not filed an affidavit controverting the
statement in Hoffer’s affidavit or asserting that the trial court did admit testimony
and exhibits at the hearing. Nor does he provide references to any testimony or
exhibits admitted at the hearing. Further, the amended order that forms the basis
of this mandamus proceeding does not indicate that any evidence was admitted or
considered. The order states: “The Court having considered [Houde’s motion to
compel], [Relators’] responses thereto, and the arguments of the parties, the Court
is of the opinion that the Motion should be granted.” See Otis Elevator Co. v.
Parmelee, 850 S.W.2d 179, 181 (Tex. 1993) (stating that complaining party not
required to obtain transcripts of non-evidentiary hearings in which trial court
expressly bases its decision on the papers filed and counsels’ arguments).
Therefore, a transcript of the hearing was not necessary; “[t]his court has never
required the parties to present a ‘statement of facts that contains only the oration of
counsel.’” Tilton v. Moye, 869 S.W.2d 955, 957 (Tex. 1994) (quoting Barnes, 751
S.W.2d at 495) (refusing to dismiss mandamus petition for failure to provide a
record from hearing on motion to compel discovery when no testimony was
taken).
11
electronic form. Houde responds that he specifically requested “the documents
and hard drives” and “electronic communications and resumes.” 5
5
In his Response to Relator’s Petition, Houde points to his requests for production
from relators for “[a]ll emails by and between [Jeffrey A. Liggett and Terence F.
Townend] that mention, concern, or relate to Houde’s educational background;”
“[a]ll emails by and between [Jeffrey A. Liggett and Terence F. Townend] that
mention, concern or relate to Houde’s work history;” “[a]ll documents that
[relators] rel[y upon] to support [their] contention that Houde ‘intentionally
misrepresented(ed) his educational qualifications’ as asserted in ¶8 of the Original
Answer/Counterclaim;” “[a]ll documents that [relators] rel[y upon] to support
[their] contention that ‘prior to PPSI and PEI permitting Houde to purchase stock
in each company, Houde represented to PPSI and PEI that he had earned a
Bachelor of Science Degree in Chemical Engineering from Georgia Institute of
Technology’ as asserted in ¶22 of the Original Answer/Counterclaim;” and “[a]ll
documents that [relators] rel[y upon] to support [their] contention that Houde ‘in
writing made a false representation of material fact to PPSI and PEI’ as asserted in
¶28 of the Original Answer/Counterclaim.” Houde also points to his requests for
production from PEI and PPSI in which he requested “[a]ll documents that
[Pinnacle Engineering or Pinnacle Project Services] rel[y upon] to support its
contention that Houde ‘intentionally misrepresent(ed) his educational
qualifications’ as asserted in ¶8 of the Original Answer/Counterclaim” and “[a]ll
documents that [Pinnacle Engineering or Pinnacle Project Services] rel[y upon] to
support its contention that Houde ‘fraudulently induced PEI to make (Houde) a
shareholder’ in Pinnacle Engineering as asserted in ¶8 of the Original
Answer/Counterclaim.” However, in his Motion to Compel Production of
Forensic Images, Houde asserted to the trial court that his motion was based on
previous requests for the production of: “[a]ll correspondence or other items by
and between Pinnacle Engineering and Houde prior to October 9, 2003 that
mention, concern, or related to Houde’s employment or ownership in Pinnacle
Engineering;” “[a]ll correspondence or other items by and between Pinnacle
Engineering from October 9, 2003 to January 17, 2011, that mention, refer or
concern Houde’s employment or ownership in Pinnacle Engineering;” “[a]ll
documents reflecting or concerning Pinnacle Engineering’s investigation of
Houde’s educational background prior to October 9, 2003;” “[a]ll documents
reflecting or concerning Pinnacle Engineering’s investigation of Houde’s
educational background from and after October 9, 2003 to January 17, 2011;”
“[a]ll emails by and between employees of Pinnacle Engineering that mention,
concern or relate to Houde’s educational background;” and “[a]ll emails by and
between Jeffrey A. Liggett and Terence F. Townend that mention, concern or
relate to Houde’s educational background,” as well as his request for the computer
12
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
hard drives from the desktops, laptops, and Dell notebooks of Liggett, Townend
and Cruz and network server hard drives “utilized by the Defendants during the
relevant period.”
13
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
14
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.
15
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.”6 However, as the court in In re Weekley
6
Houde makes similar assertions in his response to relators’ petition that he “made
a showing that the information sought existed only on Relators’ hard drives and
servers.” Houde asserts that the trial court considered evidence and heard
arguments that “numerous additional versions of a purported resume of [Houde]
existed on Relators’ electronic storage devices that had not been produced during
discovery” and the trial court’s order was directed at those specific
communications and unproduced versions of Houde’s resume and the underlying
16
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
metadata. But Houde points us to no evidence presented to the trial court
substantiating his assertions.
17
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
18
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
19
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
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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.”
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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
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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
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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
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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.
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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.
Conclusion
We conditionally grant relators’ petition for writ of mandamus and direct the
trial court to vacate its December 18, 2012 amended order. We are confident the
district court will promptly comply, and our writ will issue only if it does not.
Terry Jennings
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
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