Oral Arguments Scheduled on Overly Burdensome Electronic Discovery Orders

January 23rd, 2017 By Catherine Hanna

The Texas Supreme Court has agreed to hear oral argument on two mandamus petitions filed by State Farm Lloyds on the scope of electronic discovery in insurance cases.

IN RE STATE FARM LLOYDS; from Hidalgo County; 13th Court of Appeals District (13-14-00616-CV, ___ SW3d ___, 10-28-15)
consolidated for oral argument with
IN RE STATE FARM LLOYDS; from Hidalgo County; 13th Court of Appeals District (13-14-00651-CV, ___ SW3d ___, 10-28-15)

As State Farm points out in its mandamus petitions, a tactic among certain attorneys is to use the discovery process to inflate the cost and burden of discovery. In this case, plaintiffs’ attorneys are using Rule 196.4 of the Texas Rules of Civil Procedure to compel insurance carrier defendants to produce electronically stored information (“ESI”) in “native” and “near native” format, regardless of the burden and intrusion caused by this production and regardless of the availability of alternate formats that are reasonably usable. The rulings at issue required production of unstructured ESI in “native format,” absent  a finding that “[i]t is infeasible,” effectively eliminating any rights to object as provided under the Rules of Civil Procedure. (The use of the term “infeasible” sent this author down an interesting  “infeasible” versus “unfeasible” rabbit-hole, resulting in the discovery that blog favorite Bryan Garner prefers “infeasible,” calling “unfeasible” a “needless variant.” See http://www.economist.com/blogs/johnson/2012/07/variation) State Farm argues that the discovery orders at issue conflict with the Texas Rules of Civil Procedure and impose unwarranted burdens that are disproportionate to the litigation, which involves disputes regarding homeowners’ insurance claims. The Supreme Court will hear argument on these two petitions on March 9, 2017 at 9:00 a.m. You can follow a live-stream of the argument at the Texas Supreme Court’s website at  http://www.txcourts.gov/supreme.