When Blawgletter first heard about "discovery", we thought it barb'rous.  You have to give your files to your enemy — the one who loves to call you names, who wants to bankrupt you, who prays for your painful death, but who secretly envies you?  WHAT?!!

Since then, we've come to like it . . . some.  The fun part, we feel, involves figuring out which rocks to turn over.  You don't need to look under all of them, you know.  Just the right ones.  Doing that takes brains.

The dawn of e-discovery changed only the number of useless rocks to upend.  It didn't alter the need to use your smarts.  You simply have to apply them to the realm of electronics — servers, hard (and floppy!)disks, flash (and thumb!) drives, personal digital assistants, compact (and digital video!) disks, smart phones, voice mail systems, email (business and personal), text messaging, Twitter, Facebook, LinkedIn, Blawgletter®, portable media players, the Internets (both good and bad ones), and on and on.

In 1999, Texas led the way in writing rules to help judges, lawyers, and clients find the right electronic rocks.  And the big brain of our senior partner, Steve Susman, deserves a lot of the credit.  He chaired the Discovery Subcommittee that drafted the almost complete rewrite of the Texas discovery rules.  The Federal Rules of Civil Procedure didn't adopt e-discovery strictures until 2006.

The Supreme Court of Texas applied the 1999 rules for the first time last Friday.  It held that a party must ask for "deleted emails" if it wants emails that have gone dark but may remain in an electronic nook or cranny (such as on a server or backup tape).  The 9-0 justices also struck down an order that forced defendant Weekley Homes to let experts for plaintiff HFG "image" several computers and look through their e-contents for "deleted emails" from 2.5 years earlier.  "The missing step", the Court concluded, "is a demonstration that the particularities of Weekley’s electronic information storage methodology will allow retrieval of emails that have been deleted or overwritten, and what that retrieval will entail."  In re Weekley Homes, L.P., No. 08-0836, slip op. at 17 (Tex. Aug. 28, 2009).

The Court added this bit about "the proper procedure under Rule 196.4:"

— the party seeking to discover electronic information must make a specific request for that information and specify the form of production. TEX. R. CIV. P. 196.4.

— The responding party must then produce any electronic information that is “responsive to the request and . . . reasonably available to the responding party in its ordinary course of business.” Id.

— If “the responding party cannot — through reasonable efforts — retrieve the data or information requested or produce it in the form requested,” the responding party must object on those grounds.

— The parties should make reasonable efforts to resolve the dispute without court intervention. TEX. R. CIV. P. 191.2.

— If the parties are unable to resolve the dispute, either party may request a hearing on the objection, TEX. R. CIV. P. 193.4(a), at which the responding party must demonstrate that the requested information is not reasonably available because of undue burden or cost, TEX. R. CIV. P. 192.4(b).

— If the trial court determines the requested information is not reasonably available, the court may nevertheless order production upon a showing by the requesting party that the benefits of production outweigh the burdens imposed, again subject to Rule 192.4’s discovery limitations.

— If the benefits are shown to outweigh the burdens of production and the trial court orders production of information that is not reasonably available, sensitive information should be protected and the least intrusive means should be employed. TEX. R. CIV. P. 192.6(b). The requesting party must also pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information. TEX. R. CIV. P. 196.4.

— Finally, when determining the means by which the sources should be searched and information produced, direct access to another party’s electronic storage devices is discouraged, and courts should be extremely cautious to guard against undue intrusion.

In re Weekley Homes, slip op. at 21-22.