The costs and delays of obtaining electronic discovery are magnified when a party requests electronic information from sources such as deleted files, backup tapes or metadata, or when a party seeks direct access to hard drives and other electronic-storage devices. Searching backup tapes and imaging hard drives can interfere with the normal operation of a business’ computer network. Likewise, providing or obtaining direct access to electronic storage devices may be intrusive and can expose confidential or privileged information. Fortunately, Texas courts have outlined a step-by-step process for requesting extraordinary electronic discovery and responding to such requests.

In 2009, the Texas Supreme Court clarified the procedures for dealing with requests for production of electronic information in its In Re Weekley Homes decision. As a threshold matter, the parties should confer to discuss each side’s electronic-information storage systems in connection with requests for e-discovery.

A formal request for production is the way to obtain discovery of electronic information such as deleted files, backup tapes or metadata; the more precise it is, the better. For example, a party specifically should request the production of files located on backup tapes, rather than relying on a request for “all electronic documents” to cover these types of files.

Requests for production should seek the particular type of information at issue, rather than merely requesting the device on which the information is stored. Dallas’ 5th Court of Appeals ruled this year in In Re Jordan that a party requesting direct access to an electronic storage device should request the specific type of information sought from the device rather than only requesting access to the device.

The Texas Rules of Civil Procedure only require the responding party to produce electronic information reasonably available in the ordinary course of business. If the request seeks data not reasonably available, the responding party must object. While there is no bright-line rule for what is considered not reasonably available, requests for backup tapes, deleted files, direct access to hard-drives and other requests that might require a business to suspend the normal operation of its computer systems likely fall into this category.

Burden Shifts

Either party may request a hearing to resolve a dispute. The burden is on the responding party to demonstrate that the requested information is not reasonably available. The court can order (or either party may pursue) discovery aimed at determining whether a particular type of electronic information is reasonably available. If the court finds that that the requested electronic information is not reasonably available, the burden shifts to the requesting party to demonstrate that the benefits of producing the materials outweigh the burdens.

A party requesting direct access to an electronic storage device must show that the responding party has defaulted in its discovery obligations. In Weekley, the party was found to have defaulted in its discovery obligations when it failed to produce any emails from two key players in the dispute and produced very few emails from other sources. In In Re Clark (2011), Beaumont’s 9th Court of Appeals found that a party defaulted in her obligations when she did not produce any electronic data and admitted to “cleaning” her email account. In Frankel Offshore Energy, et al. v. Texas Standard Oil & Gas, et al. (2010), a Harris County district court found the plaintiff had defaulted in its discovery obligations and granted access to the plaintiff’s hard drive when the defendant discovered several emails on its own that the plaintiff should have produced.

After the requesting party makes a showing that the responding party has defaulted in its discovery obligations, the requesting party must then show that the requested search likely would reveal responsive and recoverable information. Texas courts have noted that a connection between the electronic storage device in question and the parties’ claims weighs in favor of allowing a search, such as when a party seeks to search a computer allegedly used to misappropriate data. Weekley held that the requesting party’s bare assertion that deleted emails are “in some cases” recoverable was not enough to justify granting access to the opposing party’s hard drive.

In In Re Stern (2010), the 1st Court of Appeals in Houston refused to grant access to a party’s hard drive because there was no showing that a search of the hard drive could recover relevant emails when the user employed a web-based email account that did not store copies of emails on the user’s hard drive. However, in Frankel Offshore the district court allowed access to a party’s hard drive after a forensics expert testified that emails from a web-based email system may be stored locally on the user’s hard drive.

The requesting party also must show that that the forensic expert who will search and recover the data in question is qualified and familiar with the particular electronic storage devices and data at issue.

If the court determines that a search of an electronic storage device is appropriate, the forensics expert undertaking the search will need search terms agreed upon by the parties or ordered by the court. In Re Stern held that the expert cannot be granted free rein to create and modify search terms. In Re Clark notedthat there must be some method of screening for privilege that does not rely on the requesting party to determine what is privileged. Finally, the requesting party must pay for any extraordinary steps in the search process.

When considering the production of materials such as backup files, hard drives or deleted emails, lawyers should be aware of the procedures established by Texas law and outlined above. Whether a client is resisting or seeking extraordinary e-discovery, these procedures provide the framework for determining when a court may compel such discovery.