Evidence Required at the Threshold for Direct Access to Opponent’s Electronic Device

In re Cooley

Dallas Court of Appeals, No. 05-21-00445-CV (February 2, 2022)

Justices Schenck (Opinion, linked here), Nowell, and Garcia

Ken Carroll

Cooley sued Methodist Richardson Medical Center, alleging she was injured while a patient there. Cooley and her housemate took photos of her injuries. Methodist sought production of the photos and the associated metadata. Cooley produced a CD with the photos and what she contended was all metadata. Methodist disagreed that all metadata had been produced, and sought direct access to the electronic devices on which the photos were taken to pursue the metadata it contended was missing. After a non-evidentiary hearing, the trial court granted Methodist’s motion to compel the requested direct access.

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.