In the case In Re Cooley, Relator, No. 05-21-00445-CV (Tex. App. Feb. 2, 2022), the Texas Fifth District Court of Appeals, finding that “[m]ere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device”, conditionally granted the writ of mandamus from the relator seeking relief from a trial court order to make device(s) that took photos of her injury available for inspection.
Case Background
In this case regarding a claim of medical negligence over an injury suffered by the relator (Terri Cooley) allegedly during her hospital visit at Methodist Richardson Medical Center (“Methodist”), Methodist served written discovery requests consisting of interrogatories and requests for production. Cooley responded to the discovery requests and, in doing so, produced photographs of the pressure injury. Some of the photographs had been taken by Cooley herself, and some had been taken by her housemate Connie Pruett. The photographs included sticky notes containing the dates the photographs were purportedly taken.
After neither Cooley nor Pruett could identify specific dates that the photographs were taken or who specifically wrote the sticky notes, Methodist served a second request for production, seeking metadata for the photographs to obtain the date the photographs were taken and Cooley served a response that included a compact disc with electronic files of the photographs in March 2021. In May 2021, Methodist filed a motion to compel discovery responses claiming, in part, that no metadata had been provided. In response, Cooley asserted she produced the electronic version of every photograph and its corresponding metadata.
The trial court held a non-evidentiary hearing on Methodist’s motion to compel on June 3, 2021 and Methodist’s counsel showed the court that right-clicking on the photographs showed a file creation date of March 5, 2021, which was long after Cooley was admitted to the hospital. But Cooley’s counsel demonstrated that, upon opening the photograph and then right-clicking on the file info, a highlighted box appeared with a check mark inserted that begins with “20190109” to illustrate that the picture was taken on January 9, 2019. The trial court asked Methodist’s counsel if he was able to access this feature; he responded “yes,” but he did not know if the date was accurate based on the other creation dates contained in the file.
On June 9, 2021, the trial court granted the motion to compel in part, ordering Cooley to make the device(s) used to take the photographs in question available for inspection to determine if metadata exists for the photographs. Cooley then filed the writ of mandamus for relief of this ruling.
Appeals Court Ruling
In considering the writ of mandamus, the Court referenced the case In re Weekley Homes, L.P., 295 S.W.3d 309, 317, 322 (Tex. 2009), stating: “The court [in that case] stressed the need for establishing protections for electronic discovery, explaining that ‘[p]roviding access to information by ordering examination of a party’s electronic storage device is particularly intrusive and should be generally discouraged, just as permitting open access to a party’s file cabinets for general perusal would be.’” Continuing, the Court stated: “The evidentiary requirements imposed by Weekley Homes on a party requesting direct access to an opponent’s electronic device rest on the principle that if a court determines production of electronic data is warranted, as the trial court determined in this case, the least intrusive means of providing relevant, responsive information should be employed… Thus, the evidentiary showing of default in compliance with discovery obligations required by Weekley Homes before direct access to an electronic device is permitted is a ‘threshold matter.’”
As a result, the Court stated: “Here, Methodist did not meet the burden of going forward with evidence. The 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…Weekley Homes makes clear the required showing is an evidentiary showing…Mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device…While the mandamus record suggests Methodist may have been concerned about multiple creation dates, Methodist failed to make an evidentiary showing that the electronic files Cooley produced lacked metadata. Accordingly, Methodist failed to make the good-cause showing necessary to justify the trial court’s order.”
In conditionally granting the writ of mandamus, the Court stated: “The harm relator will suffer from being required to relinquish control of her cell phone for forensic inspection, and the harm that might result from revealing private conversations, and privileged or otherwise confidential communications, cannot be remedied on appeal…Accordingly, relator is entitled to mandamus relief.”
So, what do you think? Do you agree with the Court’s ruling on writ of mandamus? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion links courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. Hat tip to Craig Ball for awareness of this case law ruling. 🙂
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It seems the issue of reliability in using a file’s “Creation Date” may not have been considered by plaintiff’s counsel as an argument regarding when the pictures were actual taken. But, since that topic wasn’t raised by counsel, it couldn’t be addressed by the court. So the entire matter depended on the larger issue of access to mobile devices, which may be what plaintiff’s counsel wanted to do in the first place as a better argument.
Aaron Taylor
I used that argument 20 years ago when talking to judges that didn’t understand technology – although I’d put it “You wouldn’t let opposing counsel go rummaging through every filing cabinet, desk and trash bin in a party’s office – but that’s exactly what requiring the production of an entire hard drive image amounts to doing.” This is back when attorneys routinely tried to compel production of forensic images of every custodians’ computers in general civil litigation. It was overkill then, and it’s overkill now. I know it’s not true, but I’d like to think that maybe this judge heard me say that and it stuck… 😉
That said, I couldn’t agree more with the decision here. It seems the real issue is that you have individuals making arguments over electronic data without really understanding what they are arguing. The file system metadata is often meaningless, and the embedded dates whenever available are always much more reliable and meaningful. The entire argument could have been avoided though with about 1 hour of an expert’s time. A few hundred dollars of expert advice and an affidavit from same would have saved untold thousands spent on motion practice and appellate practice. Such a waste… but sadly, all too common.