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Texas Appellate Court Overturns Trial Court’s Forensic Examination Order

Posted on March 2nd, 2015

In Re VERP Investment, LLC, No. 05-15-00023-CV (Tx. Ct. App. Feb. 17, 2015), the Texas Court of Appeals considered the type of circumstances that can justify court-ordered computer forensic mirror imaging under Texas law.

Plaintiff Nyugen filed suit after Defendant relator VERP changed the locks on Plaintiff Nyugen’s commercial building for alleged non-payment of rent.  Plaintiff alleged that Defendant had collected rent money that should have been applied to Plaintiff’s account. In discovery, Plaintiff requested electronic data regarding Defendant’s generation of invoices, including a forensic copy of the computer hard drives at issue. Defendant objected to Plaintiff’s requests as unduly burdensome, but produced over 400 documents. The issue of the forensic copy eventually got put to the court, and the trial court ordered Defendant to produce the hard drive for an independent forensic examination to review the “[file] name, date of creation, date of last access, author and recipient.”

Defendant applied for a writ of mandamus seeking relief from the trial court’s order, alleging that the trial court abused its discretion by ordering the forensic examination. The appeals court applied the test from In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009) to determine if Plaintiff had met a threshold evidentiary showing to warrant forensic imaging.  The test requires the party to put forth evidence demonstrating that: (i) the producing party had defaulted in its obligation to search and produce the requested data; and (ii) the production was inadequate and the mirror image would recover relevant materials.

The court concluded that although Plaintiff may have been concerned that Defendant’s invoices had been falsified, nothing in the evidentiary record supported that suspicion.  The court ruled that Plaintiff had thus not fulfilled its evidentiary burden, and that the trial court had abused its discretion. The court granted the writ and vacated the order requiring a forensic mirror image of Defendant’s hard drive.

ILS – Plaintiff Electronic Discovery Experts

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