in Re: VERP Investment, LLC ( 2015 )

ACCEPTED
05-15-00023-CV
05-15-00023-CV FIFTH COURT OF APPEALS
DALLAS, TEXAS
1/9/2015 9:30:51 AM
LISA MATZ
CLERK
No. _____________
_____________________________________________________________
FILED IN
5th COURT OF APPEALS
IN THE COURT OF APPEALS DALLAS, TEXAS
FOR THE FIFTH DISTRICT OF TEXAS1/9/2015 9:30:51 AM
DALLAS, TEXAS LISA MATZ
Clerk
_____________________________________________________________
In Re
VERP Investment, LLC,
Relator
_____________________________________________________________
Original Proceeding from the
134th Judicial District Court
Dallas County, Texas
_____________________________________________________________
RELATOR’S PETITION FOR WRIT OF MANDAMUS
_____________________________________________________________
FRIEDMAN & FEIGER, L.L.P.
Lawrence J. Friedman, Esq.
State Bar No. 07469300
lfriedman@fflawoffice.com
James S. Bell
State Bar No. 24049314
jbell@fflawoffice.com
Jason H. Friedman
State Bar No. 24059784
jhfriedman@fflawoffice.com
5301 Spring Valley Road, Suite 200
Dallas, Texas 75254
(972) 788-1400 (Telephone)
(972) 788-2667 (Telecopier)
ATTORNEYS FOR RELATOR
i
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 55.2(a), Relator submits the following list of the
names and last known addresses of all parties to the trial court's order, and their
counsel:
Relator:
VERP, Investment LLC
Respondent:
The Honorable Dale Tillery
134th Judicial District Court
600 Commerce Street, Suite 650
Dallas, Texas 75202
Real Parties in Interest:
Lan Hung Nguyen, Individually
and d/b/a Dance With Me Studio
Counsel for the Relator
Lawrence J. Friedman,
James S. Bell
Jason H. Friedman
Friedman & Feiger, L.L.P.
5301 Spring Valley Road, Suite 200
Dallas, Texas 75254
(972) 788-1400 (Telephone)
(972) 788-2667 (Telecopier)
lfriedman@fflawoffice.com
jbell@fflawoffice.com
jhfriedman@fflawoffice.com
Counsel for the Real Parties in Interest
ii
Bruce E. Turner,
Bennett Weston LaJone & Turner PC
1603 LBJ Freeway, Suite 280
Dallas, Texas 75234
Telephone: (972) 862-2332
Facsimile: (214) 373-2570
Email: bturner@bennettweston.com
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ..........................................................................................iv
TABLE OF AUTHORITIES ....................................................................................vi
STATEMENT OF THE CASE .............................................................................. viii
STATEMENT OF JURISDICTION.......................................................................... x
ISSUE PRESENTED .................................................................................................x
Whether the 134th Court’s Order, dated October 27, 2014, granting
Plaintiff’s Motion to Compel, constitutes an abuse of discretion where
Respondent permitted a consultant of Real Party-in-Interest direct access to
VERP’s electronic storage devices for imaging and searching.
STATEMENT OF THE FACTS ............................................................................... 1
BACKGROUND .......................................................................................................1
ARGUMENT……………………………………………………………………...6
STANDARD OF REVIEW - MANDAMUS.................................................. 6
THRESHOLD REQUIREMENT FOR COMPELLING THE
PRODUCTION
OF ELECTRONIC STORAGE DEVICE ....................................................... 8
CONCLUSION ........................................................................................................12
PRAYER ..................................................................................................................12
CERTIFICATE OF SERVICE ................................................................................12
iv
VERIFICATION ......................................................................................................14
v
TABLE OF AUTHORITIES
CASES
Baker v. Goldsmith, 582 S.W.2d 404
(Tex.1979)..………………………………………………………………………...7
Berg v. AMF Inc., 29 S.W.3d 212, 219 (Tex. App. - Houston [14th Dist.]
2000, no pet.)……………………………………………………………………….7
Borden, Inc. v. Valdez, 773S.W.2d 718
(Tex. App.—Corpus Christi 1989, no writ)…………………………………...…6, 7
Downer v. Aquamarine Operators, Inc.,701 S.W.2d 238
(Tex. 1985) .................................................................................................................6
In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006)………………………………….7
In re Dana Corp., 138 S.W.3d 298
(Tex. 2004) (orig. proceeding)(per curiam) ............................................................... 6
In re Does 1-10, 242 S.W.3d 805
(Tex. App.—Texarkana 2008, orig. proceeding)…………………………………..7
In re Gist, 1998 WL 355251
(Tex. App.—San Antonio 1998, orig. proceeding)………………………………...7
In re Honza, 242 S.W.3d 578
(Tex. App. Waco 2008)............................................................................................11
In re Office of Att’y Gen., 276 S.W.3d 611, 681 (Tex. App.—Houston [1st Dist.]
2008, orig. proceeding)…………………………………………………………..7, 8
In re Prudential Ins. Co., 148 S.W.3d 124
(Tex.2004)………………..………………………………………………….…..7,8
vi
In re State ex rel. Robinson, 16 S.W.3d 115
(Tex. App.—Houston [14th Dist.] 2002, orig. proceeding)…………………………6
In re Unitech Elevator Servs., 178 S.W.3d 53 (Tex. App.—Houston [1st Dist.]
2005, orig. proceeding)…………………………………………..…………………7
In re Weekley Homes, L.P., 295 S.W.3d 309
(Tex.2009)………………..……………………..…………………………........ 8, 9
Walker v. Packer, 827 S.W.2d 833
(Tex. 1992) ..............................................................................................................6
STATUTES
TEX. CONST. ART. V. §6. ...........................................................................................vi
TEX. GOV’T. CODE. §22.221(a). ................................................................................vi
RULES
TEX. R. APP. P. 52......................................................................................................vi
TEX. R. APP. P. 55.2(a) ............................................................................................. ii
vii
STATEMENT OF THE CASE
Nature of the case: This original proceeding arises out of Cause No. DC-14-
03874, styled Lan Hung Nguyen Individually and d/b/a Dance with Me Studio v.
VERP Investment, LLC, Duong Vu Trieu Truong, Chi Ly, Ken Nguyen and CD
Midway LLC in the 134th Judicial District Court, Dallas County, Texas. The
underlying suit is an action for, inter alia, breach of contract, wrongful lockout,
and other various claims stemming from Real Party-in-Interests’ eviction from the
leased premises. Respondent is the 134th Judicial District Court of Dallas County,
Texas (the “Court” and/or “Respondent”).
At issue is whether the Court abused its discretion in granting Plaintiff’s
Motion to Compel thereby allowing a consultant of Real Party-in-Interest Lan Han
Nguyen direct access to Relator, VERP Investments, LLC’s electronic storage
devices for imaging and searching. Real Party-in-Interest, Lan Han Nguyen
Individually, and d/b/a Dance With Me Studio (hereinafter referred to as “Real
Party-in-Interest”) served his Second Request for Production to Relator, VERP,
Investment, LLC (hereinafter referred to as “VERP”) on August 22, 2014. On
September 9, 2014, VERP served its Objections and Responses to Plaintiff’s
Second Request for Production. Real Party-in-Interest then filed a Motion to
Compel on October 6, 2014. A hearing was held on October 20, 2014 on Real
viii
Party-in-Interest’s Motion to Compel. On October 20, 2014 the Court granted
Plaintiff’s Motion to Compel. On October 22, 2014, VERP filed an Emergency
Motion to Reconsider. A hearing was held on October 27, 2014 on VERP’s
Emergency Motion to Reconsider. On October 27, 2014, the Court entered an
Order Granting Plaintiff’s Motion to Compel and an Order Denying Defendant’s
Motion to Reconsider.
The trial court erred in granting Real Party-in-Interest’s Motion to Compel.
The Certified Record and evidence clearly demonstrates that Real Party-in-Interest
did not make the necessary showing that would enable the Court to permit direct
access to VERP’s electronic storage device. Specifically, Real Party-in-Interest
failed to show: 1) that VERP may be withholding, concealing, or destroying
discoverable electronic information; 2) that VERP has not adequately produced the
requested data; 3) the retrieval of the requested data is feasible; 4) that any
relationship exists—let alone a direct relationship—between VERP’s computer
hard drive and the claim itself; and 5) there is a reasonable likelihood that the
proposed search methodology will yield the information sought.
VERP seeks a writ of mandamus from this Honorable Court ordering
Respondent to: (a) vacate the Order to Compel, (b) deny Real Party-in-Interest’s
ix
Motion to Compel in its entirety; and (c) grant all other relief to which VERP may
show itself to be justly entitled.
STATEMENT OF JURISDICTION
This Court has jurisdiction to issue a writ of mandamus under Tex. Const.
art. V, §6, Texas Government Code §22.221(a), and Texas Rule of Appellate
Procedure 52.
ISSUE PRESENTED
Issue 1: Whether Respondent’s Order, dated October 27, 2014,
granting Plaintiff’s Motion to Compel, constitutes an abuse of discretion where
Respondent permitted a consultant of Real Party-in-Interest direct access to
VERP’s electronic storage devices for imaging and searching.
x
STATEMENT OF THE FACTS
BACKGROUND
This lawsuit arises from certain lease agreements entered into between
VERP and Real-Party-in-Interest. [SR, Volume 1, Tab 7, Pages 59-73 Defendants’
Original Counter-Claims and Third Party Claims]. At issue in the underlying
lawsuit, among other things, is the interpretation of the lease agreements in dispute,
and whether Real Party-in-Interest was wrongfully locked out from the leased
premises in December 2013. [SR, Volume 1, Tab 8, Pages 74-109, Plaintiff’s
Original Petition Request for Temporary Injunction and Request for Disclosures]
From February 2013 to June 2013, VERP and Real Party-in-Interest entered
into three separate lease agreements for premises located at Walnut Street Mall,
9750 Walnut Street, Dallas, Texas 75243. [SR, Volume 1, Tab 7, Pages 59-73
Defendants’ Original Counter-Claims and Third Party Claims]. Each lease
agreement had similar terms requiring among other things: the payment of rent at
the beginning of each month, the payment of a $5,000.00 security deposit, Real
Party-in-Interest to procure all permits and licenses for the transaction of business
in the premises, and Real Party-in-Interest to maintain insurance. [SR, Volume 1,
Tab 7, Pages 59-73 Defendants’ Original Counter-Claims and Third Party Claims].
Among other breaches of his lease agreements, Real Party-in-Interest
continually failed to make his rent payments for the spaces. [SR, Volume 1, Tab 7,
1
Pages 59-73 Defendants’ Original Counter-Claims and Third Party Claims]. VERP
continued to demand payment month after month. [SR, Volume 1, Tab 7, Pages
59-73 Defendants’ Original Counter-Claims and Third Party Claims]. Finally, after
ten months of receiving the run around from Real Party-in-Interest, VERP issued,
and Real Party-in-Interest received, written notice of defaults for the premises on
December 19, 2013 and again on December 24, 2014. Real Party-in-Interest was
locked out on December 30, 2013. [SR, Volume 1, Tab 7, Pages 59-73
Defendants’ Original Counter-Claims and Third Party Claims].
On or about April 10, 2014, Real Party-in-Interest filed the pending
litigation against VERP. [SR, Volume 1, Tab 8, Pages 74-109, Plaintiff’s Original
Petition Request for Temporary Injunction and Request for Disclosures].
On or about April 17, 2014, Real Party-in-Interest served his First Request
for Production on VERP. VERP produced over 400 documents in response to Real
Party-in-Interest’s First Request for Production, including invoices regarding the
three leases.
On or about August 22, 2014, Real Party-in-Interest served VERP with his
Second Request for Production. [SR, Vol. 1, Tab 4, Pages 27-34, Defendant VERP
Investment, LLC’s Emergency Motion to Reconsider]. Real Party-in-Interest’s
requests sought among other things electronic information related to the invoices
previously produced and a forensic image of VERP’s entire hard drive. [SR, Vol.
2
1, Tab 4, Pages 27-34, Defendant VERP Investment, LLC’s Emergency Motion to
Reconsider]. Specifically Real Party-in-Interest requested the following:
REQUEST FOR PRODUCTION NO. 1: Please produce the electronic
information related to the generation of invoices from you to Plaintiff for
suites 114, 116 and 124 of the Walnut Street Mall located at 9750 Walnut
Street, Dallas, Texas 75234 including the electronic information related to
the accounting software/program used by the company for its accounting
purposes.
REQUEST FOR PRODUCTION NO. 2: Please produce all electronic
data related to the generation of such invoices from the accounting
software/program utilized to generate the invoices from you to Plaintiff
specifically for the lease on Dance with Me Studios, Suite 114, of the
Walnut Street Mall, located at 9750 Walnut Street, Dallas, Texas 75243.
REQUEST FOR PRODUCTION NO. 3: Please produce from the
accounting software/ program utilized to generate the invoices from you to
Plaintiff specifically for the lease on La Nuit Cafe, Suite 116, of the Walnut
Street Mall, located at 9750 Walnut Street, Dallas, Texas 75243 all
electronic data files related to such invoices in the following form: on
CD/DVD or comparable sized flash media with a notation identifying the
computer program (including version identification) necessary to access the
information.
REQUEST FOR PRODUCTION NO. 4: Please produce from the
accounting software/ program utilized to generate the invoices from you to
Plaintiff specifically for the lease on Loc Hy Restaurant, Suite 124, of the
Walnut Street Mall, located at 9750 Walnut Street, Dallas, Texas 75243 all
electronic data related to such invoices.
REQUEST FOR PRODUCTION NO. 5: Please produce a forensic copy
of the computer hard drive from the computer(s) used to generate the
3
invoices from you to Plaintiff specifically for the lease on Dance with Me
Studios, Suite 114, of the Walnut Street Mall, located at 9750 Walnut Street,
Dallas, Texas 75243 in the following form: on a same size or comparable
sized external hard drive. A qualified forensic computer specialist agreed
upon by the parties will be made available to take the forensic copy and hold
it in trust for search based on search terms to be determined by the parties or,
if necessary, by the court.
REQUEST FOR PRODUCTION NO.6: Please produce a forensic copy of
the computer hard drive from the computer(s) used to generate the invoices
from you to Plaintiff specifically for the lease on La Nuit Cafe, Suite 116, of
the Walnut Street Mall, located at 9750 Walnut Street, Dallas, Texas 75243
in the following form: on a same size or comparable sized external hard
drive. A qualified forensic computer specialist agreed upon by the parties
will be made available to take the forensic copy and hold it in trust for
search based on search terms to be determined by the parties or, if necessary,
by the court. [SR, Vol. 1, Tab 4, Pages 27-34, Defendant VERP Investment,
LLC’s Emergency Motion to Reconsider].
VERP objected to the requests. [SR, Vol. 1, Tab 4, Pages 27-34, Defendant
VERP Investment, LLC’s Emergency Motion to Reconsider]. In response to
VERP’s objections, on or about October 6, 2014, Real Party-in-Interest filed a
Motion to Compel requesting that the Court order VERP to produce all electronic
data information, accounting software program, a forensic copy of the Defendant’s
hard drive and all emails and deleted emails. [SR, Vol. 1, Tab 6, Pages 54-57
Motion to Compel Responses to Plaintiff’s Second Request for Production]. In his
Motion to Compel, Real Party-in-Interest cited no authority supporting his request
for direct access to VERP’s hard drive. [SR, Vol. 1, Tab 6, Pages 54-57 Motion to
4
Compel Responses to Plaintiff’s Second Request for Production]. Additionally,
Real Party-in-Interest made no claim that VERP may be withholding, concealing,
or destroying discoverable electronic information. [SR, Vol. 1, Tab 6, Pages 54-57
Motion to Compel Responses to Plaintiff’s Second Request for Production]. In
fact, nowhere in Real Party-in-Interest’s Request, Motion to Compel, or any
subsequent pleadings does he state with any specificity the information he seeks
from VERP’s hard drive or provide a legitimate explanation as to why it may only
be obtained through direct access to VERP’s hard drive. [SR, Vol. 1, Tab 5, Pages
49-53, Motion to Compel Responses to Plaintiff’s Second Request for Production;
Tab 3, Pages 7-26, Response to Emergency Motion to Reconsider]. The closest
Real Party-in-Interest comes to doing so is in his Response to VERP’s Emergency
Motion for Reconsideration in which he provides this vague justification, “Plaintiff
Nguyen needs a copy of the hard drive to determine if the invoices were first
produced in 2014 and without the hard drive that information cannot be shown.”
[SR, Vol. 1, Tab 5, Pages 49-53, Motion to Compel Responses to Plaintiff’s
Second Request for Production; Tab 3, Pages 7-26, Response to Emergency
Motion to Reconsider].
A hearing was held on October 20, 2014 on Real Party-in-Interest’s Motion
to Compel. At this hearing no testimony was adduced in connection with the
matter complained. On October 22, 2014, VERP filed an Emergency Motion to
5
Reconsider. A hearing was held on October 27, 2014 on VERP’s Emergency
Motion to Reconsider. [SR, Vol. 1, Tab 9, Pages 110-119, Defendant VERP
Investment, LLC’s Emergency Motion to Reconsider Hearing Reporter’s Record].
At the hearing, Plaintiff did not provide any more support for compelling
production of Defendant VERP’s electronic storage device. [SR, Vol. 1, Tab 9,
Pages 110-119, Defendant VERP Investment, LLC’s Emergency Motion to
Reconsider Hearing Reporter’s Record]. On October 27, 2014, Respondent
entered an Order Denying Defendant’s Motion to Reconsider and entered an Order
Granting Plaintiff’s Motion to Compel.
ARGUMENT
A. STANDARD OF REVIEW – MANDAMUS
Mandamus is an extraordinary writ that should be issued only when the trial
court has clearly abused its discretion and there is no adequate remedy by appeal.
Walker v. Packer, 827 S.W.2d 833, 839-740 (Tex. 1992). A trial court abuses its
discretion when it acts without reference to any guiding rules or principles or when
it acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators,
Inc.,701 S.W.2d 238, 241-242 (Tex. 1985).
Because there is no adequate remedy by appeal, mandamus relief is
appropriate to correct a trial court’s clear abuse of discretion in allowing discovery
that is not in accordance with the Texas Rules of Civil Procedure. In re Dana
6
Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding) per curiam); see also
In re State ex rel. Robinson, 16 S.W.3d 115, 118-19 (Tex. App.—Houston [14th
Dist.] 2002, orig. proceeding); Borden, Inc. v. Valdez, 773S.W.2d 718, 720 (Tex.
App.—Corpus Christi 1989, no writ) (court issued mandamus to correct a trial
court’s order regarding the location of a deposition); In re Gist, 1998 WL 355251
(Tex. App.—San Antonio 1998, orig. proceeding) (court issued mandamus to
correct a trial court’s order requiring more than thirty (30) interrogatories where
there was no finding that “justice so requires”); In re Does 1-10, 242 S.W.3d 805
(Tex. App.—Texarkana 2008, orig. proceeding)(court issued mandamus to correct
a trial court’s order regarding the production of information where there was no
proper outstanding discovery request).
Determining whether an appellate remedy is adequate involves balancing
“practical and prudential” considerations, such as the inevitability of reversal and
the waste of judicial resources on a proceeding. See In re Prudential Ins. Co., 148
S.W.3d 124, 136 (Tex. 2004); In re Unitech Elevator Servs., 178 S.W.3d 53, 64-65
(Tex. App.—Houston [1st Dist.] 2005, orig. proceeding).
Although an appellate court may not decide disputed facts in a mandamus
proceeding, In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006), a trial court’s
determination regarding whether a party established a proposition by prima facie
proof is a question of law reviewable de novo. Baker v. Goldsmith, 582 S.W.2d
7
404, 408-09 (Tex. 1979) (appeal from a denial of bill of review); Berg v. AMF Inc.,
29 S.W.3d 212, 219 (Tex. App. - Houston [14th Dist.] 2000, no pet.) (appeal from
forum non conveniens dismissal); In re Office of Att’y Gen., 276 S.W.3d 611, 681
(Tex. App.—Houston [1st Dist.] 2008, orig. proceeding) (original proceeding with
regard to orders granting a bill of review and vacating a default judgment).
B. THRESHOLD REQUIREMENT FOR COMPELLING THE
PRODUCTION OF ELECTRONIC STORAGE DEVICE
The Texas Supreme Court has held that when ordering intrusive discovery
measures—such as direct access to an opponent’s electronic storage device—at a
minimum, the benefits of the discovery must outweigh the burden imposed upon
the discovered party. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-6
(Tex. 2004).
Recently, in In re Weekley Homes, L.P., the Court further addressed this
issue. In Weekley, the Court expounded on the necessary showings a requesting
party must make before a court may permit forensic experts direct access to an
opponent’s electronic storage device. 295 S.W.3d 309, (Tex. 2009).
Like the present case, the issue in Weekley was whether the trial court
abused its discretion by allowing forensic experts direct access to a party’s
electronic storage devices for imaging and searching. Id. at 312.
8
In its decision, the Court looked to the Federal Rules of Civil Procedure,
which are analogous to the Texas Rules on electronic discovery, although not
identical. Id. The federal rules state that a trial court may order production of
information that is not reasonably available, only “if the requesting party shows
good cause.”Id. at 317. Good cause requires the court to consider various factors
such as whether,
the burden or expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the amount in controversy,
the parties’ resources, the importance of the issues at stake in the
action, and the importance of the discovery in resolving the issues. Id.
Although the Texas rules do not expressly require a “good cause” showing
before ordering production of not-reasonably-available electronic information, trial
courts are required to limit discovery if after considering the above factors, they
determine that the burden or expense of the proposed discovery outweighs is likely
benefit. Id.
The Court went on to reason that providing access to a party’s electronic
storage device is “particularly intrusive and should generally be discouraged just as
permitting open access to a party’s file cabinets for general perusal would be.”Id.
The court also outlined “basic principles” regarding direct access to a party’s
electronic storage device derived from federal case law:
9
• The requesting party must show that the responding party has somehow
defaulted in its obligation to search its records and produce the requested
data.
• The requesting party should also show that the responding party’s
production has been inadequate and that a search of the opponent’s
[electronic storage device] could recover deleted relevant materials.
• Even if the requesting party makes the threshold showing, only a qualified
expert should be afforded access to the storage device.
• Courts have been more likely to order direct access to a responding party’s
electronic storage devices when there is some relationship between the
electronic storage device and the claim itself. Id. at 318-319.
Finally the Court noted that even if the trial court could have concluded that
the requesting party made a showing that their opponent did not search for relevant
deleted emails that were requested, that was not enough to allow access to the
storage devices. Id. at 320. The requesting party had to demonstrate that the
electronic information they sought was retrievable, and what the retrieval of said
information would entail. Id.
Here, the Record affirmatively demonstrates that Respondent has permitted
Real Party-in-Interest to have direct access to VERP’s electronic storage device
without requiring Real Party-in-Interest to make the necessary showing. [SR, Vol.
1, Tab 5, Pages 49-53, Motion to Compel Responses to Plaintiff’s Second Request
for Production; Tab 3, Pages 7-26, Response to Emergency Motion to Reconsider,
10
[SR, Vol. 1, Tab 9, Pages 110-119, Defendant VERP Investment, LLC’s
Emergency Motion to Reconsider Hearing Reporter’s Record]. Specifically, Real
Party-in-Interest has failed to show 1) anything that suggests VERP may be
withholding, concealing, or destroying discoverable electronic information; 2) that
VERP has not adequately produced the requested data; 3) that retrieval of the
requested data is feasible; 4) any relationship let alone a direct relationship
between the Defendant’s computer hard drive and the claim itself; and, 5) a
reasonable likelihood that the proposed search methodology will yield the
information sought. [SR, Vol. 1, Tab 5, Pages 49-53, Motion to Compel Responses
to Plaintiff’s Second Request for Production; Tab 3, Pages 7-26, Response to
Emergency Motion to Reconsider [SR, Vol. 1, Tab 9, Pages 110-119, Defendant
VERP Investment, LLC’s Emergency Motion to Reconsider Hearing Reporter’s
Record].
The closest Real Party-in-Interest has come to making any kind of showing
was in his Response to VERP’s Emergency Motion for Reconsideration in which
he stated, “Plaintiff Nguyen needs a copy of the hard drive to determine if the
invoices were first produced in 2014 and without the hard drive that information
cannot be shown.” [SR, Vol. 1, Tab 3, Pages 7-26, Response to Emergency Motion
to Reconsider]. As outlined in Weekley, this is simply not sufficient to compel
access to VERP’s electronic storage device.
11
Like Weekley, the present case can be distinguished from the facts in In re
Honza, where a party was granted direct access to its opponent’s electronic storage
device. 242 S.W.3d 578 (Tex. App. Waco 2008). In Honza, a central determination
of the case depended on when a partial assignment draft was modified. Id. The
Court allowed access to the opponent’s hard drive but limited the search to
metadata associated with the two versions of the partial assignment that had
already been produced. Id.
The key distinction between the present case and Honza is that in Honza
there was a direct relationship between the hard drives sought and the claims being
made in the case. The information sought in the hard drive directly concerned a
key issue in the case which was when the partial draft had been modified. Id. at
580. Here, the key issues of the case concern the terms of lease agreements entered
into by VERP and Real Party-in-Interest, and Real Party-in-Interest has made no
showing that there is a direct relationship between his claims and the information
he seeks to obtain through accessing VERP’s hard drive.
CONCLUSION
VERP has clearly shown that Real Party-in-Interest did not meet the
necessary showing that would permit Respondent to compel the production of
VERP’s electronic storage device. Allowing a party direct access to an opponent’s
electronic storage device is an intrusive discovery measure that requires at a
12
minimum that the benefits of the discovery outweigh the burden imposed on the
discovered party. Real Party-in-Interest has failed to do so. As such, discovery of
VERP’s electronic storage device should not have been permitted. Respondent
abused its discretion in finding otherwise and mandamus should follow.
PRAYER
WHEREFORE, VERP respectfully requests that this Honorable Court: (a)
compel Respondent to vacate its Order Denying Defendant’s Motion to
Reconsider; (b) compel Respondent to vacate its Order Granting Plaintiff’s Motion
to Compel; and, (c) grant all other relief to which VERP may show itself to be
justly entitled.
Respectfully submitted,
FRIEDMAN & FEIGER, L.L.P.
/s/ Jason H. Friedman
_____________________________
Lawrence J. Friedman
State Bar No. 07469300
lfriedman@fflawoffice.com
James S. Bell
State Bar No. 24049314
jbell@fflawoffice.com
Jason H. Friedman
State Bar No. 24059784
jhfriedman@fflawoffice.com
13
5301 Spring Valley Road, Suite 200
Dallas, Texas 75254
(972) 788-1400 (Telephone)
(972) 788-2667 (Telecopier)
ATTORNEYS FOR RELATOR VERP
CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of January, 2015, a true and correct copy
of the foregoing Motion for Stay was served upon all parties in this matter in
accordance with the Texas Rules of Appellate Procedure.
Respondent:
The Honorable Dale Tillery
134th Judicial District Court
600 Commerce Street, Suite 650
Dallas, Texas 75202
Attorney for Real Parties in Interest:
Bruce E. Turner,
Bennett Weston LaJone & Turner PC
1603 LBJ Freeway, Suite 280
Dallas, Texas 75234
Telephone: (972) 862-2332
Facsimile: (214) 373-2570
Email: bturner@bennettweston.com
/s/ Jason H. Friedman
________________________________
Jason H. Friedman
14
VERIFICATION IN ACCORDANCE WITH TEXAS
RULE OF APPELLATE PROCEDURE 52.3(j)
STATE OF TEXAS §
§
COUNTY OF DALLAS §
BEFORE ME, the undersigned Notary Public, on this day personally
appeared Jason H. Friedman, and after being duly Certified, stated under oath that
he has reviewed Relator's Petition for Writ of Mandamus and concluded that every
factual statement contained therein is supported by competent evidence in the
appendix or record.
FURTHER AFFIANT SAYETH NOT.
Jason H. Friedman
SUBSCRIBED AND CERTIFIED TO BEFORE ME y the said Jason H.
Friedman, on this the 9th day of January, 2015.
15