Recently, cases exploring the limits of electronic discovery are percolating to the highest courts in both the state and federal systems. As of late, courts have focused on proportionality. This presentation by BoyarMiller attorney Kasi Chadwick explores those decisions and their implications in light of the rules of civil procedure.

1. Are There Limits to e-
Discovery?
Key Takeaways from
Recent Decisions on e-
Discovery
Kasi Chadwick
InfraGard
September 27, 2017

2. Discovery in
Theory

3. PAGE
The Problem –
Discovery is to Seek the Truth?
"YOU CAN’T HANDLE THE TRUTH"
• "[A] just, fair, equitable, and
impartial adjudications of the
rights of litigants"
• "[W]ith as great expedition and
dispatch at the least expense
both to the litigants and to the
state as may be practicable"
• However, many belief that the
rising cost of discovery is forcing
strategic decisions in cases,
regardless of the case’s merit
3
"[T]he ultimate
purpose of
discovery is to
seek the
truth…"
Jampole v. Touchy,
673 S.W.2d 569 (Tex. 1984).

4. PAGE
Enter e-Discovery
EFFECTS OF E-DISCOVERY
• e-discovery consists of more than just the electronic
production of e-mails
– Electronic messages
– Voicemail
– Computer forensics
• e-discovery can significantly fast-track the review of
information in litigation
• If the purpose of discovery is to truly seek the truth, e-
discovery (when done correctly) allows litigants to essentially
recreate the underlying facts
• Deponents lie at deposition; data does not
4

5. PAGE
Enter e-Discovery
EFFECTS OF E-DISCOVERY
• Alternatively, e-discovery—even when done correctly—has
expanded the amount of documents and data at play in a
lawsuit
• $$$
• Accordingly, Texas and Federal Courts are attempting to set
the appropriate limits of e-discovery
5

6. Changes
to Rules

7. PAGE
Winds of Change
FEDERAL
• In 2015, the United States Supreme Court approved several,
material changes to Rules 26 and 34 to the Federal Rules of
Civil Procedure
STATE
• Texas Courts, largely relying on the federal changes, are
issuing rulings to limit e-discovery
• The Texas Supreme Court Advisory Committee is presently
considering potential changes to the Texas rules to track the
2015 changes to the Federal Rules
7

8. Winds of Change –
Federal Level

9. PAGE
Winds of Change – Federal Level
2015 AMENDMENTS
• Changes to Rule 26 and Rule 34
• These changes were largely made to reduce the costs of e-
discovery
– The Advisory Committee noted that the costs of discovery "are
disproportionately high."
• Proportionality is now key
– Now, the new rules essentially require lawyers to be more cognizant of
what is—and what is not—important in a case
– "Do unto others?"
9

10. PAGE
Winds of Change – Federal Level
CHANGES TO RULE 26(B)(1) – "SCOPE IN GENERAL"
10
Old Rule Amended Rule
26(b)(1)
…Parties may obtain
discovery regarding any
nonprivileged matter that is
relevant to any party’s claim
or defense [-including the
existence, description,
nature, custody, condition,
and location of any
documents or other tangible
things and the identity and
location of persons who
know of any discoverable
matters…]
…Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the
case, considering the importance of the issues at
stake in the action, the amount in controversy, the
parties’ relative access to the relevant information,
the parties’ resources, the importance of the
discovery in resolving the issues, and whether the
burden or expense of the proposed discovery
outweighs its likely benefit.

11. PAGE
Winds of Change – Federal Level
CHANGE TO RULE 26(B)(1) MEANING?
• Rule 26(b)(1) controls the general scope of discovery
• Changes the period when the reasonableness of discovery
requests are to be evaluated
• While 6 of these 7 factors previously appeared in another part
of the Federal Rules (governing court-ordered limitations on
discovery), these 6 factors were previously only employed
when a party sought a protective order from the court to limit
discovery on the back-end
• Under the new rules, these factors are to be considered in
determining the overall scope of discovery on the front-end
11

12. PAGE
Winds of Change – Federal Level
CHANGE TO RULE 26(B)(1) MEANING?
• Proportionality!
• This is the new, 7th factor for consideration
• And, in practice, it is HUGE
• The shift to a proportionality analysis has been a chief focus
of Texas courts as well
12

13. PAGE
Winds of Change – Federal Level
CHANGES TO RULE 26(B)(1) – "SCOPE IN GENERAL"
13
Old Rule Amended Rule
26(b)(1)
[…For good cause, the court
may order discovery of any
matter relevant to the subject
matter involved in the action.
Relevant information need not
be admissible at the trial if the
discovery appears reasonably
calculated to lead to the
discovery of admissible
evidence…]
…Information within this scope of discovery need
not be admissible in evidence to be discoverable

14. PAGE
Winds of Change – Federal Level
CHANGE TO RULE 26(B)(1) MEANING?
• As always, information need not be admissible to be
discoverable
• Clarifies that the scope of discovery is not tied to the
probability of discovering admissible evidence
• Even so, requests are still limited to "non-privileged matter[s]
that [are] relevant to any party’s claim or defense"
– The changes to this portion of Rule 26(b)(1) do not likely change the
availability of a valid relevance objection to an overly broad discovery
request
• Relevance—calling it "the importance of the discovery"—is
still a critical factor in seeking (or opposing) e-discovery
14

15. PAGE
Winds of Change – Federal Level
CHANGES TO RULE 26(D)(2) – "TIMING AND SEQUENCE OF DISCOVERY"
15
Old Rule Amended Rule
26(d)(2)
[Current Rule 26(d)(2),
concerning the sequence of
discovery, is moved to
26(d)(3), with a minor edit.]
(A) More than 21 days after the summons and
complaint are served on a party, a request under
Rule 34 may be delivered:
(i) to that party by any other party, and
(ii) by that party to any plaintiff or to any other
party that has been served
(B) The request is considered to have been served
at the first Rule 26(f) conference

16. PAGE
Winds of Change – Federal Level
CHANGE TO RULE 26(D)(2) MEANING?
• The change to Rule 26(d)(2) allows a party to serve discovery
requests prior to the Rule 26(f) conference
• Requests for production may be served as soon as 22 days
after service of the complaint and summons
• If such discovery is served, a party’s time to respond does not
begin to run until after the parties’ Rule 26(f) conference
16

17. PAGE
Winds of Change – Federal Level
CHANGE TO RULE 26(D)(2) MEANING?
• This change was intended to make the parties’ Rule 26(f)
conference more productive
– If there’s a basic understanding of the initial discovery to be propounded,
the Rule 26(f) conference may be used to hammer-out details like
document searches and medium of production
• However, in practice, this is not occurring
17

18. PAGE
Winds of Change – Federal Level
CHANGES TO RULE 34 – "RESPONSES AND OBJECTIONS" TO ESI
REQUESTS
18
Old Rule Amended Rule
34(b)(2)(B)
For each item or
category, the response
must either state that
inspection and related
activities will be
permitted as requested
or state [an objection] to
the request, including
the reasons.
For each item or category, the response must
either state that inspection and related activities will
be permitted as requested or state with specificity
the grounds for objecting to the request, including
the reasons. The responding party may state that it
will produce copies of documents or of
electronically stored information instead of
permitting inspection. The production must then be
completed no later than the time for inspection
specified in the request or another reasonable time
specified in the response.
32(b)(2)(C)
An objection to party of
a request must specify
the part and permit
inspection of the rest.
An objection must state whether an responsive
materials are being withheld on the basis of that
objection. An objection to party of a request must
specify the part and permit inspection of the rest.

19. PAGE
Winds of Change – Federal Level
CHANGE TO RULE 34(B)(2)(B) MEANING?
• Rule 34(b)(2)(B) controls, among other things, the time to
respond and object to the production of electronically stored
information and tangible things
• Parties now must:
– Provide greater specifics in objections;
– Produce responsive documents within a "reasonable time"; and
– Given an express confirmation in its response whether documents are
being withheld based on any stated objection
• This has implications for e-discovery – Arguably, must
produce documents quicker
19

20. PAGE
Winds of Change – Federal Level
CHANGE TO RULE 26(D)(2) MEANING?
• Greater specificity in objections required
– Can no longer say the request is "vague and ambiguous" or "unduly
burdensome" as a whole
– Instead, lawyers are to point to exactly what is "vague and ambiguous"
and/or "unduly burdensome" in their objections
20

21. PAGE
Winds of Change – Federal Level
CHANGE TO RULE 26(D)(2) MEANING?
• Production within a "reasonable time"
– For better or for worse, lawyers sometimes respond to discovery requests
without producing documents and do not specify when responsive
document will be produced
– This change puts a stop to this practice
21

22. PAGE
Winds of Change – Federal Level
CHANGE TO RULE 26(D)(2) MEANING?
• Documents withheld
– When lawyers object and then produce documents, it is not always clear
whether documents are being withheld pursuant to the lawyer’s
objections
– This change requires the responding lawyer to affirmatively say if
documents are withheld
– Does not require the responding lawyer to identify the withheld
documents (That’s Rule 26(b)(5))
22

23. Winds of Change –
Texas State Level

24. PAGE
Winds of Change – Texas State Level
THE TEXAS SUPREME COURT’S ADVISORY COMMITTEE’S ACTION
– In April 2016, the Texas Supreme Court asked Supreme Court Advisory
Committee to consider potential changes to rules
• "Modernize the rules"
• "Increase efficiency"
• "Decrease the cost of litigation"
– Inspired by:
• 2015 changes to Federal Rules of Civil Procedure
• State Bar Court Rules Committee proposals
• Last change was in late 1990s
– Discovery Subcommittee currently revising proposals based on Advisory
Committee feedback after numerous meetings
24

25. PAGE
PROPORTIONALITY!
• Mirrors new Federal Rule 26(b)(1)
• Much debate over sufficiency of current
rules
– Rule 192.3: Scope
• "any matter that is not privileged and is
relevant"
• "reasonably calculated to lead to the discovery
of admissible evidence"
• Documents, persons, witnesses, experts, etc.
– Rule 192.4: Limits
• "unreasonably cumulative or duplicative"
• "obtainable from some other source that is more
convenient, less burdensome, less expensive"
• "burden or expense outweighs the benefit"
Winds of Change – Texas State Level
25

26. Recent Texas
Decisions

27. PAGE
Recent Supreme Court of Texas Trend
IN RE STATE FARM LLOYDS
520 S.W.3d 595 (Tex. 2017) (orig. proceeding)
• Facts
– Residential homeowners sued their insurer alleging underpaying of
insured hail-damage claims
– A discovery protocol was entered by the trial court requiring State Farm to
produce their ESI in native form regardless of whether a more convenient,
less expensive, and "reasonably usable’ format was readily available
– In the normal course of State Farm’s business native documents were
transferred to static form
– State Farm offered to produce ESI in a searchable, but static form in .pdf,
.tiff, and .jpeg files
– The insured demanded native production
– The trial court demanded native production; State Farm mandamused
27

28. PAGE
Recent Supreme Court of Texas Trend
IN RE STATE FARM LLOYDS
520 S.W.3d 595 (Tex. 2017) (orig. proceeding)
• General rule – Scope of discovery is "any matter that is not
privileged and is relevant to the subject matter of the pending
action"
• Counterbalance – "[U]nwarranted delay and expense"
• "The simple fact that requested information is
discoverable…does not mean that discovery must be had"
• As to metadata, while it may be generally discoverable if
relevant and unprivileged, that does not mean that production
in a metadata-friendly format is necessarily required
28

29. PAGE
Recent Supreme Court of Texas Trend
IN RE STATE FARM LLOYDS
520 S.W.3d 595 (Tex. 2017) (orig. proceeding)
• Whether production of metadata is required "engages the
interplay between the discovery limits of Rule 192.4 and
production of electronic discovery under Rule 196.4"
29

30. PAGE 30

31. PAGE
Recent Supreme Court of Texas Trend
IN RE STATE FARM LLOYDS
520 S.W.3d 595 (Tex. 2017) (orig. proceeding)
• The Texas Supreme Court focused on proportionality
• The proportionality inquiry requires case-by-case balancing in
light of the following factors:
– Likely benefit of the requested discovery
– The needs of the case
– The amount in controversy
– The parties’ resources
– Importance of the issues at stake in the litigation
– Importance of the propose discovery in resolving the litigation
– Any other articulable factor bearing on proportionality
31

32. PAGE
Recent Supreme Court of Texas Trend
IN RE STATE FARM LLOYDS
520 S.W.3d 595 (Tex. 2017) (orig. proceeding)
• The Texas Supreme Court expressly noted that this
application of proportionality aligns electronic-discovery
practice under the Texas Rules of Civil Procedure with
electronic-discovery practice under the Federal Rules of Civil
Procedure
• The Texas rules "as written are not inconsistent with the
federal rules or the case law interpreting them"
32

33. Federal
Jurisprudence
as Guide

34. PAGE
Federal Jurisprudence on e-Discovery Since 2015
SCOTT V. EGLIN FED. CREDIT UNION – NORTHERN DISTRICT OF
FLORIDA (2017)
• "[R]equiring [the defendant] to search, collect and produce emails and
text messages is not proportional to the needs of this case and
therefore not within the scope of discovery as now defined in Rule 26"
• "Balancing the marginal relevance of information in emails and text
messages against the time and expense that would be involved for a
small business like [the defendant] in searching cellular telephones,
servers and other electronic storage facilities makes little sense and
would cause Plaintiff's current employer to incur an expense that
ultimately will have little or no impact on the outcome of the case"
CRABTREE V. ANGIE’S LIST, INC. – SOUTHERN DISTRICT OF
INDIANA (2017)
• Denying defendant's request for a forensic examination of the plaintiffs'
electronic devices because whatever evidence might be found was
already available to the defendant from other sources and privacy and
confidentiality interests were significant
34

35. PAGE
Federal Jurisprudence on e-Discovery Since 2015
FIRST AM. BANKCARD V. SMART BUS. TECH., INC. – EASTERN DISTRICT OF
LOUISIANA CASE (2017)
• Failing to compel the requested forensic imagining so as to not "exceed[] the
proportionality limit"
• Sought a broad-ranging forensic image of defendants’ "computer/server" without
any further detail in the request
• Court found this request was neither relevant nor proportional
HESPE V. CITY OF CHICAGO – NORTHERN DISTRICT OF ILLINOIS (2016)
• Chicago police officer sued CPD for sex discrimination and hostile work
environment
• Plaintiff failed to produce responsive text messages and voice mails initially;
defendant only learned of these items in the deposition of plaintiff’s mother
• Defense counsel requested a forensic review of plaintiff’s computer
• The court denied; upheld on appeal
• While plaintiff had failed to produce responsive information previously, no link to
the plaintiff’s computer and the case established
35

36. PAGE
Parting Thought
36
ARE THESE DECISIONS THE BEST POLICY?
• If discovery in litigation is truly intended to seek the truth, is
proportionality a valid consideration?

37. Questions?
37OBTAINING AND OBJECTING TO
WRITTEN DISCOVERY IN TEXAS STATE COURT

38. Kasi Chadwick:
kchadwick@boyarmiller.com
BOYARMILLER : 713.850.7766