in Re State Farm Lloyds

NUMBERS 13-14-00616-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE STATE FARM LLOYDS
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion Per Curiam1
Relator, State Farm Lloyds (“State Farm”), filed a petition for writ of mandamus in
the above cause through which it contends that the trial court abused its discretion by
ordering the production of discovery in native or near-native formats rather than
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); TEX.
R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
“reasonably usable” formats.2 Because State Farm failed to meet its burden under the
discovery rules to support its objection that it could not produce the discovery through
reasonable efforts, we deny relief.
I. BACKGROUND
Alejos Ramirez and Ofelia Ramirez, the plaintiffs in the underlying cases and real
parties in interest herein, sustained property damages to their home caused by a hail
storm that occurred on March 29, 2012. They submitted a claim to State Farm under their
homeowner’s insurance policy for damages to, inter alia, their home’s roof, siding,
ceilings, wall, and insulation, and ultimately brought suit against State Farm alleging that
State Farm inadequately investigated and estimated their damages. Their causes of
action included fraud, conspiracy to commit fraud, breach of contract, breach of the duty
of good faith and fair dealing, and violations of Texas Insurance Code provisions relating
to unfair settlement practices and the failure to promptly pay claims. See, e.g., TEX. INS.
CODE ANN. §§ 541.060, 542.056, 542.058 (West, Westlaw through 2015 R.S.).
The real parties’ case was transferred to a single multidistrict litigation (“MDL”)
pretrial court in the 206th District Court of Hidalgo County handling consolidated pretrial
proceedings for all insurance coverage cases stemming from two severe hail storms that
struck Hidalgo County in 2012. The MDL pretrial court entered a case management order
including a production protocol for electronically stored information (“ESI”).3
2This cause arises from trial court cause number C-3828-13-D in the 206th District Court of Hidalgo
County, Texas, the Honorable Rose Guerra Reyna presiding.
3 The MDL pretrial court ultimately adopted the same ESI protocol at issue in this case. State Farm
sought to set aside that ruling in a substantially similar original proceeding in our Court. We deny that
petition for writ of mandamus by a separate memorandum opinion issued this same date. See In re State
Farm Lloyds, No. 13-14-00651-CV, 2015 WL ___, at *__ (Tex. App.—Corpus Christi Oct. 28, 2015, orig.
proceeding) (mem. op. per curiam).
2
The MDL pretrial court subsequently remanded the real parties’ case to the trial
court. The parties met repeatedly and unsuccessfully to attempt to negotiate a protocol
for the production of ESI in the remanded case. The real parties ultimately filed a “Motion
for the Entry of Production Protocol and Motion to Compel Testimony Regarding
Technical Information.” State Farm objected to the production of ESI in its “Defendants’
Amended Motion for Adoption of State Farm Lloyds’ Proposed ESI Protocol, Motion for
Protective Order, and Response and Objections to Plaintiffs’ Amended Motion for Entry
of Production Protocol and Motion to Compel Testimony Regarding Technical
Information.” As identified in its petition for writ of mandamus, State Farm’s objections to
the production were incorporated in paragraphs 11 and 17 and state:
11. Resolution of this dispute is no small matter. Adopting Plaintiffs’
proposed ESI protocol language will impose significant burdens on
State Farm to develop (test and implement) unique and burdensome
processes just for this case. Moreover, adoption of the Plaintiffs’
proposed ESI protocol over State Farm’s objections (and despite the
offer of a more than reasonable alternative) will set a dangerous
precedent that Tex. R. Civ. P. 196.4 is no longer the balancing test
that requires the court to apply proportionality and reasonableness
principles to reach practical production solutions. Indeed, such
adoption over objection would effectively gut the protections of TEX.
R. CIV. P. 196.4, ignore the mandates of TEX. R. CIV. P. 1, and run
afoul of the precedent established by the Texas Supreme Court.
17. Equally important, Plaintiffs’ approach is unsupported under the law.
Plaintiffs’ Proposed ESI Protocol (and near 100% “native” demand)
cannot be ordered unless the court first addresses State Farm’s
objections and determines that producing in the demanded format is
something State Farm can reasonably accomplish. The Texas
Legislature did not craft Rule 196.4 as a mandate for native
production. Nor does Rule 196.4 demand that all parties adapt to an
ever-evolving highest standard regarding form of production.
Rather, the history of the rule indicates that it was crafted to measure
reasonableness, the most common of all discovery standards. The
1999 Rulemaking History for Rule 196.4 explained that “[u]nless
ordered otherwise, the responding party need only produce the data
reasonably available in the ordinary course of business in
3
reasonably usable form.” Approval of Revisions to the Texas Rules
of Civil Procedure, 61 TEX. B.J. 1140 (emphasis added).[4]
State Farm supported its motion with various items, including an affidavit regarding
electronic security from its expert, Timothy M. Opsitnick.
The trial court held an evidentiary hearing on the discovery issues at which various
witnesses testified including Opsitnick; Darren Autry, a catastrophe team manager
employed by State Farm Fire and Casualty Company; and Craig Ball, the real parties’
electronic discovery expert. The trial court granted the real parties’ motion to compel.
The trial court’s “Order Granting Plaintiffs’ Amended Motion for Entry of Production
Protocol and Motion to Compel Testimony Regarding Technical Information” includes a
“Production Protocol,” which provides in relevant part:
1. “Information items” as used here encompass individual documents
and records (including associated metadata) whether on paper or
film, as discrete “files” stored electronically, optically or magnetically
or as a record within a database, archive or container file. The term
should be read broadly to include e-mail, messaging, word
processed documents, digital presentations and spreadsheets.
2. Consistent with Tex. R. Civ. P 196.4, responsive electronically stored
information (ESI) shall be produced in its native form; that is, in the
form in which the information was customarily created, used and
stored by the native application employed by the producing party in
the ordinary course of business. The producing party shall not
produce in a format not requested and later assert that production as
a basis of not producing in the requested format, except upon
agreement by the parties prior to production or ordered by the Court.
The parties are reminded of their obligation to confer and to make
reasonable efforts to resolve disputes regarding production without
court intervention. See In re Weekley Homes. L.P., 295 S.W.3d 309
(Tex. 2009); TEX. R. CIV. P. 192.4(b).
3. If it is infeasible to produce an item of responsive ESI in its native
form, it may be produced in an agreed-upon near-native form; that
is, in a form in which the item can be imported into the native
application without a material loss of content, structure or
4 We have omitted internal citations and footnotes from the quoted text.
4
functionality as compared to the native form. Static image production
formats serve as near-native alternatives only for information items
that are natively static images (i.e., photographs and scans of hard-
copy documents).
This original proceeding ensued. By two issues, State Farm contends: (1) Texas
Rules of Civil Procedure 196.4 and 192.4 allow for the production of ESI in “reasonably
usable forms”; and (2) the trial court clearly abused its discretion by entering an order
requiring the production of all ESI in specific formats (e.g., “native”) as demanded by real
parties and by refusing to allow State Farm to produce ESI in the “reasonably usable”
forms it proffered.5 This Court requested and received a response to the petition from the
real parties, and further received a reply thereto from State Farm.
II. STANDARD OF REVIEW
To be entitled to mandamus relief, a relator must demonstrate that the trial court
clearly abused its discretion and the relator has no adequate remedy by appeal. In re
Lee, 411 S.W.3d 445, 463 (Tex. 2013) (orig. proceeding); In re Reece, 341 S.W.3d 360,
364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135–36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion if it
reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial
error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the
facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (per curiam). The adequacy of an appellate remedy must be determined by
balancing the benefits of mandamus review against the detriments. In re Team Rocket,
5 In a third issue, State Farm contends that the trial court clearly abused its discretion by ordering
“discovery on discovery.” Real parties argue that this issue is moot because the trial court did not compel
the requested testimony or mention it in the order at issue in this proceeding. We agree. Accordingly, we
do not address this issue.
5
L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). Because this balance depends
heavily on circumstances, it must be guided by the analysis of principles rather than the
application of simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc.,
275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). We evaluate the benefits and
detriments of mandamus review and consider whether mandamus will preserve important
substantive and procedural rights from impairment or loss. In re Prudential Ins. Co. of
Am., 148 S.W.3d at 136.
A discovery order that compels production beyond the rules of procedure is an
abuse of discretion for which mandamus may be the proper remedy. In re Nat’l Lloyds
Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014) (orig. proceeding) (per curiam); In re Deere &
Co., 299 S.W.3d 819, 820 (Tex. 2009) (per curiam); In re Weekley Homes, L.P., 295
S.W.3d 309, 322 (Tex. 2009) (orig. proceeding); In re Am. Optical Corp., 988 S.W.2d 711,
713 (Tex. 1998) (orig. proceeding); see, e.g., In re Ford Motor Co., 988 S.W.2d 714, 721
(Tex. 1998) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (orig.
proceeding).
III. DISCOVERY
The Texas Rules of Civil Procedure allow a party to obtain discovery regarding any
matter that is not privileged and is relevant to the subject matter of the pending action,
even if it would be inadmissible at trial, as long as the information is reasonably calculated
to lead to the discovery of admissible evidence. TEX. R. CIV. P. 192.3(a); see In re CSX
Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). Information is relevant if it
tends to make the existence of a fact that is of consequence to the determination of the
action more or less probable than it would be without the information. TEX. R. EVID. 401.
6
The phrase “relevant to the subject matter” is to be “liberally construed to allow the
litigants to obtain the fullest knowledge of the facts and issues prior to trial.” Ford Motor
Co. v. Castillo, 279 S.W.3d 656, 664 (Tex. 2009); see In re Nat'l Lloyds Ins. Co., 449
S.W.3d at 488; In re HEB Grocery Co., 375 S.W.3d 497, 500 (Tex. App.—Corpus Christi
2012, orig. proceeding). The comments to Rule 192 state that “[w]hile the scope of
discovery is quite broad, it is nevertheless confined by the subject matter of the case and
reasonable expectations of obtaining information that will aid resolution of the dispute.”
TEX. R. CIV. P. 192 cmt. 1; see also In re CSX Corp., 124 S.W.3d at 152 (“Although the
scope of discovery is broad, requests must show a reasonable expectation of obtaining
information that will aid the dispute's resolution.”). Therefore, discovery requests must be
reasonably tailored to include only matters relevant to the case. In re Am. Optical Corp.,
988 S.W.2d at 713. Further, the discovery rules “explicitly encourage trial courts to limit
discovery” under the parameters of the rules. See In re Alford Chevrolet–Geo, 997
S.W.2d 173, 181 (Tex. 1999) (orig. proceeding). Under the rules:
The discovery methods permitted by these rules should be limited by the
court if it determines, on motion or on its own initiative and reasonable
notice, that:
(a) the discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less
burdensome, or less expensive; or
(b) the burden or expense of the proposed discovery outweighs its likely
benefit, taking into account the needs of the case, the amount in
controversy, the parties' resources, the importance of the issues at
stake in the litigation, and the importance of the proposed discovery
in resolving the issues.
TEX. R. CIV. P. 192.4(b)); see In re Alford Chevrolet-Geo, 997 S.W.2d at 181.
7
“[T]he ultimate purpose of discovery is to seek the truth, so that disputes may be
decided by what the facts reveal, not by what facts are concealed.” In re Colonial Pipeline
Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding) (per curiam) (quoting Jampole
v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984) (orig. proceeding)). The scope of discovery
rests largely within the discretion of the trial court. In re Graco Children's Prods., Inc.,
210 S.W.3d 598, 600 (Tex. 2006) (per curiam); In re CSX Corp., 124 S.W.3d at 152; In
re Colonial Pipeline Co., 968 S.W.2d at 941; Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d
491, 492 (Tex. 1995) (orig. proceeding); Ginsberg v. Fifth Ct. of Apps., 686 S.W.2d 105,
108 (Tex. 1985) (orig. proceeding).
Accordingly, when considering whether a trial court has clearly abused its
discretion with regard to a discovery order, the reviewing court may not substitute its
judgment for the judgment of the trial court. See Walker, 827 S.W.2d at 839–40. “Even
if the reviewing court would have decided the issue differently, it cannot disturb the trial
court's decision unless it is shown to be arbitrary and unreasonable.” Id. at 840. “When
a trial judge exercising an otherwise discretionary authority has only one course to follow
and one way to decide, however, the discretion vested in the court is for all practical
purposes destroyed.” In re Goodyear Tire & Rubber Co., 437 S.W.3d 923, 927–28 (Tex.
App.—Dallas 2014, orig. proceeding). Thus, when challenging matters ordinarily
committed to the broad discretion of the trial court, a relator in a mandamus proceeding
must establish that the trial court could reasonably have reached only one decision.
Walker, 827 S.W.2d at 839–40; In re VERP Inv., LLC, 457 S.W.3d 255, 260 (Tex. App.—
Dallas 2015, orig. proceeding).
IV. DISCOVERY IN ELECTRONIC OR MAGNETIC FORMAT
8
Rule 196.4 addresses the procedures that must be followed in seeking the
discovery of data or information that exists in electronic or magnetic format. See TEX. R.
CIV. P. 196.4; In re VERP Inv., Inc., 457 S.W.3d at 260. Rule 196.4 provides:
To 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. The responding party must produce the electronic
or magnetic data that is responsive to the request and is reasonably
available to the responding party in its ordinary course of business. 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 state an objection complying with these rules. If the court orders
the responding party to comply with the request, the court must also order
that the requesting party pay the reasonable expenses of any extraordinary
steps required to retrieve and produce the information.
TEX. R. CIV. P. 196.4; see In re Harris, 315 S.W.3d 685, 698 (Tex. App.—Houston [1st
Dist.] 2010, orig. proceeding). 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 L.P., 295 S.W.3d at 314; see
In re Pinnacle Eng'g, Inc., 405 S.W.3d 835, 840 (Tex. App.—Houston [1st Dist.] 2013,
orig. proceeding); In re Jordan, 364 S.W.3d 425, 426 (Tex. App.—Dallas 2012, orig.
proceeding).
V. ANALYSIS
In its first issue, State Farm contends that Texas Rules of Civil Procedure 196.4
and 192.4 allow for the production of ESI in reasonably usable forms. In its second issue,
State Farm argues that the trial court abused its discretion in requiring the production of
all ESI in a specific format and refusing to allow State Farm to produce ESI in the
reasonably usable forms it proffered. State Farm contends that it would have to
“undertake efforts that are disproportionate to this matter” in order to design, validate, and
9
implement processes to produce the specific formats requested for all data sources. In
response, the real parties assert that the trial court’s decision to require native or near-
native production was supported by ample evidence and testimony.
Under Rule 196.4, the requesting party “must specifically request production [of
ESI] and specify the form” in which ESI should be produced. TEX. R. CIV. P. 196.4.
Thereafter, the responding party “must produce the electronic or magnetic data that is
reasonably available to the responding party in its ordinary course of business.” Id. If
“the responding party cannot—through reasonable efforts . . . produce [the data] in the
form requested, the responding party must state an objection complying with these rules.”
Id. If the trial court overrules the objection and orders the responding party to comply with
the request, Rule 196.4 contains a cost-shifting mechanism that requires the requesting
party to pay for “the reasonable expenses of any extraordinary steps required to retrieve
and produce the information.” Id.
Under the express terms of the Rule 196.4, the real parties are required to specify
the form of production for requested ESI, and State Farm has the obligation to either
produce the responsive ESI that is reasonably available to it in the ordinary course of
business or to object if it cannot produce the ESI in the requested form through
“reasonable efforts.” Id. The rule does not offer State Farm the unilateral option to
produce ESI in a “reasonably usable” format. See id. Rather, Rule 196.4 incorporates
the same procedure applicable to other forms of discovery—that is, the responding party
is required to produce the information in the form requested unless the party serves timely
objections or assertions of privilege. See id. R. 193.2, 6 193.3; In re CI Host, Inc., 92
6 Under Rule 193.2, a party has “a duty” to make “a complete response to written discovery based
upon all information reasonably available, subject to objections and privileges.” TEX. R. CIV. P. 192.3 cmt.
10
S.W.3d 514, 516 (Tex. 2002) (orig. proceeding); In re Fisher & Paykel Appliances, Inc.,
420 S.W.3d 842, 847 (Tex. App.—Dallas 2014, orig. proceeding [mand. denied]).
In the instant case, the real parties have clearly specified the form for production
of ESI as specified by our rules and consistent with federal practice.7 Further, real parties
presented evidence and argument through their pleadings and at the evidentiary hearing
on their motion to compel that ESI discovery in native and near-native formats is
necessary and is not available from other sources. Specifically, the record contains
evidence that the discovery offered by State Farm as “reasonably usable” lacked
numerous categories of information regarding State Farm’s evaluation of the real parties’
claim such as emails, instant messages, captions next to photographs that incorporated
the adjuster’s evaluations of the real parties’ damages, and “Xactanalysis” reports on the
claim. Ball, the real parties’ expert, testified that production of the ESI in native and near-
native format was both easier and cheaper for State Farm than the production of
information lacking metadata. Ball further testified that the production of ESI in native
and near-native format was necessary because the denatured and downgraded data
1. Objections must be made within the time for response and must state specifically the legal and factual
basis for the objection and the extent to which the party is refusing to comply. See id. R. 192.3(a). “A party
must comply with as much of the request to which the party has made no objection unless it is unreasonable
under the circumstances to do so before obtaining a ruling on the objection.” Id. R. 192.3(b). Objections
that are untimely or “obscured by numerous unfounded objections” are waived. Id. R. 192.3(e).
7 When interpreting the Texas rules governing electronic discovery, we may “look to the federal
rules for guidance” because our rules are sufficiently similar to the Federal Rules of Civil Procedure. In re
Weekley Homes, L.P., 295 S.W.3d 309, 317 (Tex. 2009) (orig. proceeding); In re Waste Mgmt. of Tex.,
Inc., 392 S.W.3d 861, 874 (Tex. App.—Texarkana 2013, orig. proceeding). Under the federal rules, the
producing party is only offered a choice between producing data in the form in which it is ordinarily
maintained as a native format or producing the data in a reasonably usable form or forms if the requesting
party declines to specify a form. Anderson Living Trust v. WPX Energy Prod., LLC, 298 F.R.D. 514, 526
(D.N.M. 2014); see Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dept. of Homeland Sec.,
255 F.R.D. 350, 355 (S.D.N.Y. 2008) (stating that under Federal Rule 34(b) “a requesting party may specify
a form of production and request metadata,” and the “responding party then must either produce ESI in the
form specified or object”).
11
offered by State Farm as “reasonably usable” was incomplete and lacked essential
information. Ball explained that both State Farm and its defense counsel utilized the ESI
data concerning the real parties’ claim in native and near-native formats, but offered
downgraded information to the real parties for purposes of discovery in the litigation.8
As noted by the Texarkana Court of Appeals, there is federal authority that removal
of metadata can render documents not “reasonably usable:”
The rule does not require a party to produce electronically stored
information in the form in which it is ordinarily maintained, as long as it is
produced in a reasonably usable form. But the option to produce in a
reasonably usable form does not mean that a responding party is free to
convert electronically stored information from the form in which it is
ordinarily maintained to a different form that makes it more difficult or
burdensome for the requesting party to use the information efficiently in the
litigation.
In re Waste Mgmt. of Tex., Inc., 392 S.W.3d 861, 876 (Tex. App.—Texarkana 2013, orig.
proceeding); see FED. R. CIV. P. 34 (notes of advisory committee to 2006 amendments);
see, e.g., In re Payment Card Interchange Fee & Merch. Disc., MD 05-1720(JG)(JO),
2007 WL 121426, at *4 (E.D.N.Y. Jan. 12, 2007) (stating that data ordinarily kept in an
electronically searchable form should not be produced in a “reasonably usable” form that
removes or significantly degrades this feature); cf. Aguilar v. Immigration & Customs
Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350, 355 (S.D.N.Y. 2008)
(citing advisory committee's notes); Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d
8 The Sedona Conference is a nonprofit legal policy research and education organization which
has a working group comprised of judges, attorneys, and electronic discovery experts dedicated to resolving
electronic document production issues. See Sedona Conference, The Sedona Principles: Best Practices
Recommendations & Principles for Addressing Electronic Document Production (2d ed. 2007). According
to the Sedona Conference, “[a]bsent party agreement or court order specifying the form or forms of
production,” the production of ESI should be made in the “form or forms in which the information is ordinarily
maintained or in a reasonably usable form.” See id. The Sedona Conference cautions, however, that
parties “need to produce reasonably accessible metadata that will enable the receiving party to have the
same ability to access, search, and display the information as the producing party where appropriate or
necessary in light of the nature of the information and the needs of the case.” Id.
12
146, 150 (D.Mass. 2009) (stating that spreadsheets must be produced in native format to
be reasonably usable).
State Farm specifically objected to the production of the requested ESI in the
requested forms on grounds that it would be burdensome and the benefit was outweighed
by the expense given the needs of the case. Opsitnick testified that State Farm’s proposal
for ESI protocol “better reflects the standards enunciated by best practices organizations
(as well as the Texas Rules of Civil Procedure).” He testified generally that static format
production “is customary and appropriate for ESI protocols.” He testified that “the facts
presented by State Farm” reflect that “information that is reasonably available in the
ordinary course of business at State Farm” is “often” not in native or near-native formats.
According to Opsitnick, State Farm relies on centralized information management
systems because of the sheer volume of claims and personnel involved, and “[s]ome of
those processes necessarily incorporate information from other locations and sources
into secure, read-only formats for data integrity and access.” Opsitnick testified that
“[r]equiring State Farm to track down ‘native’ files created by the initial applications for
information that is readily available through systems . . . is an undue burden without a
corresponding benefit.” According to Opsitnick, the requested ESI production is
“extraordinary and unnecessary in light of the way in which relevant information is stored,
identified and retrieved within databases or applications at State Farm”; and requiring
State Farm “to develop or devise (as well as test) new methods of collecting and handling
all requested information in ‘native’ or ‘near-native’ file types is burdensome and does not
make sense.”
13
We first note that a party's failure to comply with a discovery request is not excused
because the request is burdensome; it is only an “undue burden” that warrants
nonproduction. In re Waste Mgmt. of Tex., Inc., 392 S.W.3d at 875; In re Energas Co.,
63 S.W.3d 50, 55 (Tex. App.—Amarillo 2001, orig. proceeding); ISK Biotech Corp. v.
Lindsay, 933 S.W.2d 565, 568 (Tex. App.—Houston [1st Dist.] 1996, orig. proceeding);
see Alford Chevrolet–Geo, 997 S.W.2d at 181 (requiring demonstration of undue burden
or harassment). Further, the party resisting discovery cannot simply make conclusory 9
allegations that the requested discovery is unduly burdensome, rather, a party resisting
discovery must produce some evidence supporting its claim of undue burden. Alford
Chevrolet–Geo, 997 S.W.2d at 181; In re Energas Co., 63 S.W.3d at 55. Moreover, a
discovery request will not result in an undue burden when the burden of responding to it
is the result of the responding party's own “conscious, discretionary decisions.” ISK
Biotech Corp., 933 S.W.2d at 569; see In re Waste Mgmt. of Tex., Inc., 392 S.W.3d at
875–76; In re Whiteley, 79 S.W.3d 729, 734–35 (Tex. App.—Corpus Christi 2002, orig.
proceeding).
Other than the testimony previously referenced and similar testimony, State Farm
produced no evidence regarding the alleged burdensomeness of producing the requested
ESI in native and near-native formats. The foregoing testimony regarding the alleged
burden to State Farm is conclusory. See Alford Chevrolet–Geo, 997 S.W.2d at 181; In
re Energas Co., 63 S.W.3d at 55. Specifically, State Farm did not provide the trial court
9 A “conclusory” statement is one which expresses a factual inference without stating the underlying
facts on which the inference is based. See Arkoma Basin Exploration Co. v. FMF Assocs. 1990–A, Ltd.,
249 S.W.3d 380, 389 n.32 (Tex. 2008) (citing BLACK'S LAW DICTIONARY 308 (8th ed. 2004)); see also
LeBlanc v. Lamar State Coll., 232 S.W.3d 294, 301 (Tex. App.—Beaumont 2007, no pet.) (“Statements are
conclusory if they fail to provide underlying facts to support their conclusions.”).
14
with any evidence regarding the estimated cost or expense of producing the ESI data in
the requested forms, any evidence regarding the time that it would take to produce the
ESI data in the requested forms, or any other estimate of the “reasonable expenses of
any extraordinary steps required to retrieve and produce the information.” See TEX. R.
CIV. P. 196.4. Without such evidence, the trial court had no data with which to conclude
that the burden or expense of the proposed discovery outweighs its likely benefit. See
id. R. 192.4(b)); In re Alford Chevrolet-Geo, 997 S.W.2d at 181. We note, in this regard,
that the record indicates that State Farm already produces ESI in the requested forms to
its counsel. Under such circumstances, the trial court may have inferred that the
production of ESI in the requested formats to real parties would not be unduly
burdensome.
Accordingly, the trial court acted within its discretion in determining that the
discovery was not unduly burdensome or that the burden or expense of the discovery
outweighed its likely benefit.
VI. CONCLUSION
Having examined and fully considered the petition for writ of mandamus, the
response, the reply, and the applicable law, we conclude that mandamus relief is not
warranted in this case. Accordingly, we LIFT the stay previously imposed by this Court
and we DENY the petition for writ of mandamus. See TEX. R. APP. P. 52.8(d).
PER CURIAM
Delivered and filed the
28th day of October, 2015.
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