|Computer Hard Drives May Be Searched for Evidence Only with Strict Controls|
Texas high court held that when a party demanded the right to have forensic experts copy a company’s hard drives in an effort to search for evidence, the imaging could be allowed only under stringent controls that protect proprietary information from exposure.
Evidence; Computer Hard Drives
|C A S E S U M M A R Y|
Weekley Homes, a homebuilder, entered into an agreement with Enclave, a real estate developer, to buy 136 lots in a subdivision. Working with Weekley, Enclave then agreed to sell 74 of the lots to HFG. Enclave failed to perform various obligations owed to HFG, which then sued Enclave. HFG subpoenaed documents from various third parties, including Weekley, which provided hundreds of pages of documents. Reviewing the documents led HFG to believe that Weekley may have made material misrepresentations about the property related to Enclave’s performance, so Weekley was added as a defendant. HFG requested the court allow it to use forensic experts to access Weekley’s computers to create images of the drives so it could search for relevant documents and emails. Weekley opposed the motion, noting that the forensic experts would have access to private conversations, trade secrets, and privileged communications stored on hard drives. The trial court granted HFG’s motion; Weekley sought mandamus relief from the court of appeals, which denied the petition. Weekley appealed to the Texas high court.
Writ of mandamus conditionally granted. HFG was not entitled to production of the computer hard drives in the absence of a demonstration of the particular characteristics of the electronic storage devices involved, the familiarity of its experts with those characteristics, and a reasonable likelihood that the proposed search methodology would yield the information sought. The hard drive search is very intrusive. Plaintiff failed to show how it could protect Weekley’s trade secrets and other confidential information. Trial courts must grant such requests only when there is a clear understanding of the forensic methodology to be used and how materials will be treated. Sensitive information must be protected and the least intrusive means of analysis should be employed.
In re Weekley Homes, 52 Tex.Sup.Ct.J. 1231 (2009 WL 2666774, Sup. Ct., Tx., 2009)
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