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Don't Mess with Texas's Hard Drives - In re VERP Inc.

The Texas Court of Appeals for the Fifth District of Texas in Dallas issued a decision, In re VERP, Inc., 457 S.W.3d 255 (Tex. App. 2015) this past February, overturning a lower court's order that a defendant had to submit his hard drive for mirror imaging. The plaintif had persuaded the Judicial District Court that the invoices the defendant had produced may have been altered because their creation date was later than the dates on the invoices. The failure to follow electronic discovery procedures was found to be an abuse of discretion that provided a ground for a mandamus order. In Texas, providing access to an electronic storage device is particulary intrusive and should only be allowed where:

1. A party "defaulted in its obligation to search its records and produce the requested data".

2. The production was inadequate.

3. A search of an electronic storage device could find relevant evidence.

Even when these conditions are met, full access to drive will only be permitted if it can be shown that the relevant information cannot be obtained by drafting search protocols. If this is the case, the search will have to be performed by a third party forensic analyst.

The Texas Court of Appeals issued the mandamus order on the basis that 'mere skepticism' about the data that a party has produced is not sufficient. There has to be some kind of showing that there's something wrong with the data or how it was produced. The Court of Appeals found that the information the requesting party wanted about the dates of the invoices could be obtained through a request for specific meta data. It faulted the requesting party's failure to submit a detailed a search methodology. A promise to exclude attorney-client communications was not enough.

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