In IN RE WEEKLY HOMES, L.P., 2009 Tex. LEXIS 630 (Tex. Aug. 28, 2009) , the Texas Supreme Court held that the trial court abused its discretion in allowing direct access to a party's hard drives.  The case is the first in which the high court ruled on the Texas e-discovery statutes.

The case involved a breach of contract dispute between two homebuilders.  At issue was a trial court's order that defendant's employees turn over their computer hard drives to the requesting party's forensic experts for imaging, copying, and searching for deleted emails.  The Texas Supreme Court conditionally granted the writ of mandamus holding that the party seeking the discovery had not made an adequate showing that a forensic examination would result in additional emails beyond those previously produced and ordered the trial court to vacate its order.

In the opinion, the Court engaged in a detailed discussion of Texas Rule of Civil Procedure 196.4 which requires a party seeking discovery to specifically request electronically stored information ("ESI") and specify the form of production in which the requesting party wants it produced.  When a specific request for ESI has been lodged, the responding party must either produce the responsive information or object that the information cannot "through reasonably efforts be retrieved or produced in the form requested." 

To determine whether requested information is reasonably available in the ordinary course of business the Texas Supreme Court noted that the trial court may first order limited discovery, such as requiring the responding party to sample or inspect the sources potentially containing information identified as not reasonably available and may also allow depositions of witnesses' knowledge about the responding party's information systems.  Should the responding party fail to meet its burden, the trial court may order production.  If the responding party meets its burden by demonstrating that retrieval and production of the requested information would be overly burdensome, the trial court may nevertheless order targeted production under a showing by the requesting party that the benefits of ordering production outweigh the costs.  However, when the court orders production of not-reasonably-available information, the Supreme Court confirmed that the trial court must also order the requesting party to pay the reasonable expenses of any extraordinary steps required to retrieve and produce this information.

While there was no specific showing of "extraordinary steps" in this case, the Court held that the trial court's ordered imaging of employees' hard drives "implies" a finding that the deleted emails were not reasonably available and required extraordinary steps for their retrieval and production.  Accordingly, the Court granted the writ of mandamus and ordered the trial court to vacate its order.  In summarizing Rule 196.4, the Texas Supreme Court encouraged cooperation between counsel as well as an effort to meet and confer early in the case consistent with FRCP 26(f).