The ESIs of Texas
Craig Ball's November column:
My home state of Texas was the first to enact a discovery rule dealing with electronically stored information. Years before the federal rules amendments, and in four simple sentences, Rule 196.4 addressed a litigant's right to discover ESI, the scope of e-discovery, forms of production and cost shifting. The rule was either so completely successful or so utterly ignored that it wasn't cited in a published decision for nearly a decade.
So, when the Texas Supreme Court — the state's highest tribunal — issued its first e-discovery opinion, I listened to oral arguments. In re: Weekley Homes, 52 Tex. Sup. Ct. J. 1231 (2009), concerned a litigant's right to directly access an opponent's storage media. The plaintiff wanted to run 21 search terms against the hard drives of four of defendant's employees in an effort to find deleted e-mails from 2004. I eagerly anticipated insightful arguments by advocates who grasped the important technical and legal issues afoot, but what I heard would make a hearse horse snicker. Judge for yourself by listening to the arguments at http://tinyurl.com/weekleyhomes.
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