Trial Court Abused Discretion in Ordering Forensic Examination Absent Pending Request for Production or Motion to Compel and in Appointing Special Master

In re Art Harris, 2010 WL 1612205 (Tex. App. Apr. 22, 2010)

In this case, the appellate court granted petitioner’s writ of mandamus and ordered the withdrawal of three underlying discovery orders upon finding that the trial court abused its discretion when it ordered the production of petitioner’s hard drives for forensic examination and when it appointed a special master to conduct that examination.

While the facts are somewhat complicated, it suffices to say that in the course of discovery, petitioner Art Harris was ordered to turn over relevant “electronic media” for forensic investigation despite the fact that there was no pending request for production of such media, no pending request for production of any kind with which he had not complied, and no pending motion to compel.  The order compelling production was, instead, the unlikely result of a motion to compel such production from a different defendant.  Despite initially indicating that Harris could produce only non-privileged responsive data, the court’s order compelling production of electronic storage media nonetheless included Harris.  The court also ordered the appointment of a special master to conduct the forensic examinations.

In addition to compelling Harris’s production of relevant electronic storage media, the court also failed to address Harris’s motion for a protective order and claims of privilege.

Following entry of its order, the court denied Harris’s motions for clarification and reconsideration. Accordingly Harris filed a petition for writ of mandamus.

The appellate court relied heavily on the Texas Supreme Court’s analysis in the recent case, In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009), which confirmed that pursuant to Tex. R. Civ. P. 196.4, electronic information is subject to discovery only upon a specific request for its production.  Additionally, the Supreme Court recognized that “‘[p]roviding access to the 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.’”  Specifically, the Supreme Court stated:

As a threshold matter [to receiving an order compelling examination of a party’s electronic storage device], 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.

Accordingly, the appellate court found that the trial court abused its discretion:

We conclude that the trial court abused its discretion not only by compelling production of overly broad discovery without addressing Harris’s motion for protective order and without a motion to compel discovery from Harris before it, but also by issuing its even more invasive order that Harris produce his hard drives and by failing to require [plaintiff] to make any showing that the benefit of the discovery she sought outweighed the burden and expense to Harris.”

The appellate court also found that the trial court abused its discretion when it appointed a special master because the case did not meet the “exceptional case/good cause standard of Rule 171.”  In so concluding, the court noted the trial court’s “conflation of the roles of a forensic examiner and a special master.”  To clarify, the court noted that a special master may be appointed in “exceptional cases, for good cause” and “has and shall exercise the power to regulate all proceedings in every hearing before him and do all acts and take all measures necessary or proper for the efficient performance of his duties.”  A forensic examiner “is a computer expert whose sole purpose is to create forensic images of a particular… device and then to search the images for specified documents using a list of search terms.”

The trial court was therefore ordered to withdraw its discovery orders compelling production and appointing the special master.

ADDENDUM:  On July 1, 2010, the Court of Appeals withdrew its April 22, 2010 opinion (summarized above) and replaced it with the opinion available here.  While identical in outcome and substantially similar in analysis, the most recent opinion removes all mention of or analysis regarding Tex. R. Civ. P. 192.6 and miscellaneous references to Harris’s Motion for a Protective Order.

Additionally, the above quotation beginning “We conclude that the trial court abused its discretion…” now states:

We conclude that the trial court abused its discretion not only by compelling production of overly broad discovery without addressing Harris’s objections and without a motion to compel discovery from Harris before it, but also by issuing its even more invasive order that Harris produce his hard drives and by failing to require Arthur to make any showing that the benefit of the discovery she sought outweighed the burden and expense to Harris.