## Facts

- Weekley Homes, L.P. contracted with a developer to purchase developed subdivision lots under a take-down schedule.
- The developer later sold remaining lots to a lot-warehousing entity and assigned its rights so Weekley would purchase the lots from the warehouser.
- Shortly before that transaction, Weekley signed a consent to assignment and estoppel certificate containing representations about the developer’s performance under the builder contract.
- After the developer allegedly failed to perform under the warehouse arrangement, the warehouser sued the developer and subpoenaed documents from third parties, including Weekley.
- Weekley produced documents in response to the subpoena, including additional materials after follow-up inquiries.
- The warehouser contended the production suggested misrepresentations in the estoppel certificate and amended its pleadings to add Weekley as a defendant for fraud and negligence.
- In discovery, the warehouser requested all “correspondence” about the project; Weekley produced some emails and hard-copy printouts.
- Claiming too few emails were produced and that other documents referenced additional communications, the warehouser sought to have forensic experts image and search the hard drives of four Weekley employees for deleted emails.
- The trial court ordered the experts to image, copy, and search the employees’ hard drives; Weekley objected that the order was highly intrusive and inadequately supported.

## Issues

1. Whether ordering forensic imaging and searching of employees’ hard drives for deleted emails was an abuse of discretion when the requesting party did not present specific, competent evidence that responsive, recoverable data likely existed on those devices and that the proposed methodology was reliable.
2. Whether, under Texas Rule of Civil Procedure 196.4, the trial court failed to balance relevance and need against the burden, privacy, confidentiality, and privilege risks of direct access to electronic storage devices.
3. Whether mandamus relief was appropriate because an appeal would not provide an adequate remedy after intrusive access to hard drives occurred.

## Decision

- The Supreme Court of Texas granted mandamus relief and held the trial court abused its discretion by ordering forensic imaging and examination of the hard drives.
- The Court held that direct inspection of electronic storage devices is particularly intrusive and generally discouraged absent a specific evidentiary showing and careful limitations.
- The Court found the requesting party relied largely on speculation (e.g., a perceived low volume of produced emails) and did not establish key facts about the devices, the likelihood of recovering deleted emails, or the experts’ search methodology.
- The Court concluded the order was insufficiently tailored and lacked adequate safeguards to protect nonresponsive, proprietary, personal, and privileged information.
- The Court held there was no adequate remedy by appeal because disclosure from a forensic examination cannot be undone once access is granted.

## Legal Principles

- Requests for direct inspection of electronic storage devices under Texas Rule of Civil Procedure 196.4 are extraordinary and should generally be discouraged due to their intrusiveness.
- A party seeking forensic access must make a specific, evidence-based showing that:
  - the responding party defaulted in its duty to search for and produce responsive ESI,
  - relevant information likely exists on the specific devices and is retrievable, and
  - the proposed forensic methodology is reliable and likely to yield the sought information.
- Courts must ensure proportionality and protect privacy, confidentiality, and privilege by narrowly tailoring any order for direct electronic access (e.g., limits by custodian, date range, file type, search terms, and use of protocols to segregate privileged or nonresponsive data).
- Mandamus is available to correct an overbroad, intrusive electronic-discovery order when post-disclosure appellate review cannot cure the harm.

## Conclusion

The Supreme Court of Texas held that forensic imaging and searching of employee hard drives for deleted emails requires a concrete, device- and methodology-specific evidentiary basis and strict tailoring with protective safeguards; because those prerequisites were not met and the intrusion could not be remedied on appeal, mandamus relief was warranted.


In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009)