Appeals court issues second ruling in suit brought by Anna Nicole Smith’s mother

Houston’s 1st Court of Appeals has found that the trial court hearing a defamation suit brought by Virgie Arthur, the mother of former model and television personality Anna Nicole Smith, abused its discretion when it appointed a special master with power to search attorney Howard K. Stern’s computer hard drive and ordered him to turn over his hard drive to the special master. The July 12 ruling in In Re: Howard K. Stern marks the second time the 1st Court has conditionally granted a petition for writ of mandamus to stop defendants in the underlying suit, Arthur v. Stern, et al., from having to turn over their computer hard drives to the special master, Austin solo Craig Ball. On April 22, the 1st Court held in In Re: Art Harris that the trial court abused its discretion in appointing a special master — Ball — with authority to search the computer hard drive of defendant Harris, an “Entertainment Tonight” correspondent. The 1st Court’s opinion in In Re: Howard K. Stern provides the following background on the case: In April 2008, Arthur sued several defendants, including Stern, the former attorney and companion of Smith. Arthur alleges that Stern conspired with the other defendants to defame her in certain syndicated television broadcasts and Internet publications, harming her efforts to seek custody and visitation of Smith’s child. In August 2008, Stern filed a special appearance in which he denied all bases for personal jurisdiction in Texas. Arthur moved to compel Stern to produce all relevant documents and contended at a Dec. 11, 2008, hearing that she was seeking evidence from Stern to establish the Texas courts’ jurisdiction over him. In a May 11, 2009, order, the trial court granted Arthur’s motion to compel and appointed Ball as special master and forensic examiner. Ball declines comment. Bryan Cave partner Walter Herring of Dallas, Stern’s attorney, says the trial court’s discovery order was overbroad and that the 1st Court’s opinion helps further establish what discovery can be done for a special appearance. The 1st Court concluded that Texas Rule of Civil Procedure 120a(3) authorizes discovery prior to ruling on a special appearance only with respect to facts essential to establish jurisdiction. The 1st Court also found that, contrary to the Texas Supreme Court’s decision in 2009’s In Re: Weekley Homes, the trial court appointed the special master without following the procedures required by Texas Rule of Civil Procedure 171 and gave Ball “virtually free reign to plumb Stern’s hard drive.” As noted in the 1st Court’s opinion, the trial court did not require Arthur to show that retrieving the data sought from a web-based e-mail storage provider was feasible, as required by Weekley Homes. Neil McCabe, Arthur’s attorney and senior counsel at The O’Quinn Law Firm in Houston, says the 1st Court faults the trial court for not following Weekley Homes, which the Supreme Court had not decided at the time the trial court appointed the special master. McCabe says Arthur can return to the trial court and follow the Weekley Homes requirements to obtain the e-mails she seeks.
-- Mary Alice Robbins