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Thursday
Apr292010

Understanding the Limits of Electronic Discovery

Similar to real estate, where the three most important things are location, location, location, the most important thing for business litigation is email, email, email.  If you get to the other side’s email, you will increase your likelihood of success expediently.  Given the importance of email, it is critical that every business litigator review a recent case styled In re Weekly Homes.   In this case, the Court has held that a trial court abused its discretion when it ordered the employees of a non-party to turn over their personal hard drives because the Court found that it was too drastic for a trial court to "give the expert carte blanche authorization to sort through the responding party's electronic storage device."   According to the Supreme Court, the electronic requests had to be more specific and there had to be a reasonable likelihood that the information sought would be recovered.  In particular, the Court noted that the original requests for electronic information did not specifically request "deleted emails."  In rendering this decision, the Texas Supreme Court provided a detailed analysis about Rule 196.4, analyzing an assortment of federal cases, and a summary of "the proper procedure under Rule 196.4."  In outlining the limits of electronic discovery, this case demonstrates the importance of issuing electronic discovery that is tailored to what you need.  In doing this, you might need to take an early deposition of the other side’s IT person to fully understand the landscape of their electronic information.  This is a must read for business litigators.  

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