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Click here for the full text of this decision FACTS:In a partial assignment of a real estate contract executed on or about April 2, 2003, A & W Development LLC assigned to Wesley F. Honza Jr. and Robert A. Honza the right of purchase under a real estate contract with regard to an 8.3-acre tract of land adjacent to Texas State Highway 34. Under the terms of the partial assignment, A & W retained “the right to purchase a portion of this property for the construction of a street with an approximate width of 78′ in a North to South direction of approximately 413′.” An earlier draft of the partial assignment, however, made no reference to such “purchase,” and A & W contended that the consideration the parties negotiated for the partial assignment took into account the consideration the Honzas should receive for the street referenced in the assignment. The parties worked with engineers and various governmental entities and reached an agreement regarding the location of the proposed street, but the Honzas insisted that A & W pay additional consideration for the land designated for the street before they would execute a right-of-way deed dedicating the land to the city of Ennis. A & W filed suit seeking declaratory relief and alleging, among other things, claims for breach of contract, promissory estoppel, statutory and common law fraud, fraudulent inducement, negligent misrepresentation and violations of the Texas Deceptive Trade Practices Act. A trial in December 2006 resulted in a mistrial. Before the matter was retried, a discovery dispute occurred. The dispute originated with A & W’s motion to gain access to the Honzas’ computers. In a motion to compel, A & W sought “[i]nformation (the”Metadata’) contained on the actual computers of the Defendants, such as any time stamps on the Relevant Documents, versions of the Relevant Documents, if any, as well as the deletion of various versions, if any.” A & W explained that, although the Honzas responded to a prior request for production of relevant documents in their electronic version, “the Metadata was neither produced nor made available.” A & W also referred to the testimony of Wesley Honza in the first trial that a March 27, 2003, diary entry related to a different transaction, referred to as the Novotny/Tonick transaction. After the first trial, A & W sought discovery of relevant documents pertaining to the Novotny/Tonick transaction, and the Honzas complied by providing pertinent written discovery. A & W sought the metadata from the Honzas’ hard drives, because it wanted to identify the points in time when the partial assignment draft was modified in relation to the diary entry. Those facts went to the issue of whether the Honzas altered the partial assignment after the parties concluded their agreement but before the document was presented for execution. Judge Greg Wilhelm of the County Court at Law No. 1 of Ellis County issued a discovery order requiring the Honzas to permit a forensic expert to create a mirror image of each computer hard drive in the Honzas’ office in an effort to locate two particular documents that served as the basis for the underlying suit. On appeal, the Honzas contended that Wilhelm abused his discretion in issuing the discovery order. HOLDING:The court denied the petition for a writ of mandamus. Texas Rule of Civil Procedure 192.3(b), the court stated, defines the permissible scope of discovery regarding documents and tangible things. A party may obtain discovery of the existence, description, nature, custody, condition, location and contents of documents and tangible things (including papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, data and data compilations) that constitute or contain matters relevant to the subject matter of the action. A person is required to produce a document or tangible thing that is within the person’s possession, custody or control. The court found that although there were no Texas decisions addressing a request for access to an opponent’s computer hard drives, a body of state and federal decisions has emerged that established a fairly uniform approach for such requests. Federal district courts, the court stated, have consistently held that electronic data stored on computer hard drives, including “deleted” files and related data, is subject to discovery. Some state courts have reached the same conclusion, the court stated. Under these decisions, the court stated, the following protocol is generally followed. First, the party seeking discovery selects a forensic expert to make a mirror image of the computer hard drives at issue. This expert is required to perform the analysis subject to the terms of a protective order, generally prohibiting the expert from disclosing confidential or otherwise privileged information other than under the terms of the discovery order. After creating the mirror images and analyzing them for relevant documents or partial documents, the court stated that trial courts typically require the expert to compile the documents or partial documents obtained and provide copies to the party opposing discovery. The court found no Texas decision regarding this type of electronic discovery. But finding the federal and out-of-state opinions persuasive, it applied the relevant protocol to the case. The Honzas contended that the discovery order was overbroad and authorized an improper “fishing expedition.” In this regard, they argued that Wilhelm improperly “gave blanket approval for A & W to gain total access to the Honzas’ computers and all information stored on them, whether or not it has anything to do with this lawsuit.” Although it is true, the court stated, that Wilhelm’s order gives A & W’s forensic expert complete access to all data stored on the Honzas’ computers, the order provides that the expert is to index all forensic images acquired from the imaging process for the limited purpose of searching for the two documents. The order further provided, the court noted, that no waiver of privilege or confidentiality would occur if A & W’s counsel or other representatives observed any privileged or confidential information. The forensic expert, the court stated, is likewise prohibited from disclosing any information observed during the imaging process. Therefore, the court did not find the discovery order to be overbroad. Along similar lines, the Honzas contended that the discovery order improperly authorized the disclosure of information protected by the attorney-client privilege and confidential information pertaining to the Honzas’ other clients who have no connection to the underlying lawsuit. The court again noted that the expert is limited in his search to two specific documents or iterations of those documents. The Honzas, the court stated, are then accorded the right to review the documents and information which the expert believes responsive and produce to A & W only those documents and information which the Honzas themselves believe are responsive. These provisions, the court stated, effectively preclude A & W from having any access to documents or information pertaining to other clients of the Honzas not involved in this litigation. Second, the court stated, the order allows the Honzas to withhold from discovery any documents or information which they claim to be privileged or confidential and provide instead a privilege log, subject to in camera review by Wilhelm. Accordingly, the court held that Wilhelm appropriately tailored the discovery order to prohibit the unauthorized disclosure of privileged or confidential information and did not abuse his discretion. OPINION:Reyna, J.; Vance and Reyna, JJ. Gray, C.J., did not participate.

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