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.  

Update on Thursday, April 29, 2010 at 7:46AM by Jack Walsh

Last fall, at a Business Torts Conference in Dallas, Craig Ball gave an excellent presentation about computer forensics.  Given that electronic discovery is fast becoming the most critical component of business litigation, attorneys who can obtain more of the other side's electronic information will significantly increase their chances for victory.  And Ball demonstrated that this fight for electronic information goes much deeper than obtaining emails.  For business litigators to succeed, they must learn how to dig deeper to get the electronic information that tells the whole story.  

Afterwards, Ball was gracious enough to speak with me for a few minutes about some of the key developments in electronic discovery.  Among other things, he confirmed the importance of reviewing the recently published decision by the Supreme Court noted above, In re Weekly Homes.