In a case of first impression, the Texas Supreme Court today addressed how parties should handle electronic discovery in its unanimous decision in In Re: Weekley Homes LP. “The court has now set forth procedures for electronic discovery,” says Joel Reese (pictured), a shareholder in Winstead’s Dallas office and Weekley’s lead attorney in HFG Enclave Land Interests v. Enclave at Forney Branch LTD, et al., the suit underlying the mandamus proceeding. Weekley is a defendant in HFG, which involves a dispute over allegedly defective lots that HFG purchased in a Dallas subdivision after Weekley represented that the lots were properly developed. As noted in the Supreme Court’s opinion, written by Justice Harriet O’Neill, HFG served Weekley with requests for production of a wide variety e-mails that related to the subdivisions but received only 31 e-mails responsive to that request. In July 2008, HFG filed a motion for limited access to Weekley’s computers to search for deleted e-mails relating to the subdivision or allegedly unsafe lots in it. The 134th District Court granted HFG’s motion in August 2008, and Weekley filed a petition for writ of mandamus with Dallas’s 5th Court of Appeals. The 5th Court denied the petition in September 2008, and Weekley turned to the Supreme Court, which heard arguments in the case on March 31. (See “Hard Drives and Determination,” Texas Lawyer, April 6, 2009, page 1.) In holding that the trial court abused its discretion in granting HFG’s limited-access motion, the Supreme Court found that “the plaintiff failed to demonstrate the particular characteristics of the electronic storage devices involved, the familiarity of its experts with those characteristics or a reasonable likelihood that the proposed search methodology would yield the information sought.” The Supreme Court conditionally granted mandamus in Weekley and ordered the trial court to vacate its order. The opinion includes a summary of the proper procedures for seeking electronic discovery under Texas Rule of Civil Procedure 196.4. Christopher Rentzel, HFG’s attorney and a partner in Bracewell & Giuliani in Dallas, did not immediately return a telephone call seeking comment.
-- Mary Alice Robbins