Haynes and Boone's Newsroom

Texas Lawyer Guest Article: Keep E-Discovery Costs From Torpedoing a Litigation Budget
09/09/2011
Richard D. Anigian, Charles M. Jones II

Opposing counsel has just served requests for production, seeking electronic data from the past 10 years, including data stored on legacy systems, backup tapes and disaster recovery systems. At first glance, the recovery costs of this data alone could exceed the value of the suit. So what's the next step in-house counsel should take?

Rely on the procedural rules : Texas Rule of Civil Procedure 196.4 may provide relief. Similar to Federal Rule of Civil Procedure 26(b)(2), Texas Rule 196.4 requires the responding party to produce responsive electronic information "reasonably available to the responding party in its ordinary course of business." However, a responding party is not required to produce electronic information that it cannot retrieve or produce "through reasonable efforts."

Texas Rule 196.4 contains a mandatory cost-shifting provision triggered when the electronic information requested is not "reasonably available" to the responding party. Under the rule, when a court orders the production of such information, it must "also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information."

Excerpt from Texas Lawyer, Sept. 9, 2011. To view the full article, click here.