eDiscovery Daily Blog

• September 16, 2011

 

A recent article published in Texas Lawyer and reprinted on Law.com raises the question of extensive and costly eDiscovery requests and how to handle them. The authors of Keep E-Discovery Costs from Torpedoing Litigation Budgets present a hypothetical scenario where the opposing counsel has requested production of 10 years of legacy electronic data – a prospect that could cost more in recovery expenses than the value of the entire lawsuit. What is the best approach for counsel to take under the circumstances and what kind of legal recourse is there if producing extensive amounts of electronic information doesn't make sense?

Meet Texas Rule 196.4

The answer – in the state of Texas, at least – is found in Texas Rule of Civil Procedure 196.4. Like Federal Rule of Civil Procedure 26(b)(2), Rule 196.4 states that parties must comply with "reasonable" production requests, but are not forced to produce electronic information for discovery if it cannot be retrieved "through reasonable efforts."  So, when it comes to unduly burdensome discovery requests, don’t mess with Texas!

Rule 196.4 also includes a provision that makes it possible to shift the cost of extensive discovery production to the requesting party. However, an attorney's ability to make a case for challenging a production request or shifting the cost of such production depends on thorough knowledge of the client's information systems. It's paramount to know the details of the client's data storage, backup systems, old and new equipment in order to make an objection on grounds of either Texas or Federal law.

Rule 196.4 Still Being Clarified

Courts are still ruling on how and when this rule applies, so it remains a useful recourse but not a foolproof procedure for issues surrounding extensive (and expensive) production. Therefore, courts have used Federal Rule 26(b)(2) and federal case law to help apply an understanding of what’s reasonably accessible.  In In Re Weekley Homes, LP (2009), the Texas Supreme Court addressed when a trial court may order production of information that is not reasonably available, but instructed trial courts to consider "the reasonable availability of information on a case-by-case basis" which leaves the implementation of these rules open-ended for the moment.

The Texas Lawyer article references other important cases, including the landmark Zubulake v. UBS Warburg LLC (2003) opinion (Zubulake I) which famously adopted a classification system of five categories of media on which electronic data is commonly stored, from most accessible to least, as follows:

1. Active, online data, such as hard drives;
2. Near-line data, such as an older robotic storage devices like optical disks;
3. Offline storage/archives, such as removable media that can be labeled and stored on a shelf like CDs and floppy disks;
4. Backup tapes, which are sequential access devices not intended for recovery of individual files; and
5. Erased, fragmented or damaged data.

Understanding these five categories of media and their accessibility is a must for anyone to be prepared to respond to discovery requests, especially like the one posed hypothetically at the beginning of the article.

So, what do you think? Have you ever been hit with a production request with a scope that would have raised eDiscovery costs beyond the value of the suit itself? If so, what did you do? Please share any comments you might have or if you'd like to know more about a particular topic.