Dallas Court of Appeals, No. 05-21-00445-CV (February 2, 2022)
Justices Schenck (Opinion, linked here), Nowell, and Garcia
Applying the Supreme Court’s decision in In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009), the Dallas Court of Appeals granted mandamus and ordered the trial court to vacate its order that Cooley gave Methodist direct access to her electronic devices. The Dallas Court noted the admonition in Weekley that “ordering examination of a party’s electronic storage device is particularly intrusive and should be generally discouraged.” To justify direct access to an opponent’s electronic device, the Court said, “[t]he procedural protections identified in Weekley Homes require that the requesting party show that the responding party has defaulted in its obligation to search its records and produce the requested data, that the responding party’s production has been inadequate, and that a search of the opponent’s electronic device could recover relevant materials.” What’s more, this is a “threshold” evidentiary requirement. Where, as here, the requesting party does not put forth the required evidence, its request for direct access must be denied—or, in this case, vacated on mandamus.