Post Process

Everything to do with E-discovery & ESI

TX Case Blurb: Honza; Court addresses objection to ‘overly broad’ discovery requests, court order

Posted by rjbiii on March 10, 2008

[Producing Party members] seek a writ of mandamus compelling Respondent, the Honorable Greg Wilhelm, Judge of the County Court at Law No. 1 of Ellis County, to set aside a discovery order requiring the Honzas to permit a forensic expert to create a mirror image of each of the computer hard drives in the Honzas’ office in an effort to locate two particular documents or iterations of those documents

The Honzas contend that Respondent abused his discretion because: (1) the discovery order is overbroad and authorizes an improper “fishing expedition”;…

The present discovery dispute originated with [Requesting Party’s] motion to gain access to the Honzas’ computers, which was filed about one month before trial. By this motion, [Requesting Party] 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.” [Requesting Party] 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.”

[Ed. Testimony indicated the existence of relevant documents with respect to a another transaction apparently not addressed by earlier discovery requests]

[] [Requesting Party] sought discovery of relevant documents pertaining to the [newly revealed] transaction, and the [Producing Party] complied by providing pertinent written discovery.

[Requesting Party] seeks the metadata from the [Producing Party’s] hard drives because it wants to identify the points in time when the partial assignment draft was modified in relation to the diary entry. This goes to the issue of whether [the Producing Party] altered the partial assignment after the parties concluded their agreement but before the document was presented for execution.

[Ed. The opinion then went on to list various Federal and State sources for persuasive authority in discovery law, especially with respect to ESI]

Overbroad Discovery

The [Producing Party] first contend that the discovery order is overbroad and authorizes an improper “fishing expedition.” In this regard, they argue that Respondent improperly “gave blanket approval for [the Requesting Party] to gain total access to [their] computers and all information stored on them, whether or not it has anything to do with this lawsuit.”

Although it is true that Respondent’s order gives A & W’s forensic expert [FN8]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 (the ‘Examination Process’) for two documents, previously Bates-labeled as HONZA 00019 and HONZA 00017, which are drafts of “Assignment of Contract” and any iterations (the ‘Relevant Documents’).” The expert must then compile any documents or information which the expert believes responsive and deliver them to the Honzas to determine for themselves which are responsive to A & W’s discovery request and which they choose to withhold, providing a privilege log instead.

In addition to limiting the expert’s search to two specific documents, the order provides that no waiver of privilege or confidentiality occurs if any otherwise privileged or confidential information is observed by A & W’s counsel or representatives during the imaging process, and they are prohibited from using such information other than in compliance with the terms of the order. The forensic expert is likewise prohibited from disclosing any information observed during the imaging process. And finally, the order requires the expert and all party representatives or counsel participating in the imaging process to sign an acknowledgment agreeing that they are subject to contempt of court for any violation of the order.

Any order requiring the imaging of a computer hard drive necessarily grants the expert who is conducting the imaging process access to all data on that hard drive. Here, Respondent specifically limited the expert’s search to two documents; gave the [Producing Party] a “right of first refusal” with regard to determining which documents or information are relevant to those two documents and responsive to [Requesting Party’s] discovery request; imposed stringent limitations on inadvertent disclosures to prevent any unintended waiver of confidentiality or privilege; and placed all participants in the imaging process under a carefully drawn protective order.

Therefore, we do not agree with the Honzas’ contention that the discovery order is overbroad.

[Ed. Note that a dissenting opinion is also entered by one of the Judges hearing the case. See the order itself for the full text of that dissent, or of the opinion itself.]

In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)

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