In a recent memorandum opinion issued by the Fifth Court of Appeals in Dallas, the court concluded that Terry Cooley, Realtor, was entitled to mandamus relief from the trial court’s order compelling her to turn over her cell phone for inspection.
Cooley suffered a fall in her home and underwent surgery on her knee at Methodist. After being discharged to a nursing facility, she discovered that she had a pressure injury in the coccyx area. Cooley subsequently sued Methodist alleging that the pressure injury was the result of the hospital staff’s failure to turn or reposition her.
During discovery, Cooley produced photographs of her injury, but during her deposition, she was unable to affirmatively verify the dates on which the photos were taken. As a result, in its second request for production, Methodist sought the metadata for the photographs to determine the correct date. In response, Cooley produced a compact disc with electronic files of the photographs. However, Methodist filed a motion to compel claiming, in part, that no metadata had been provided.
At the hearing on the motion, Methodist’s counsel showed that right-clicking on the photo revealed a date, but the date was long after Cooley had been admitted to the hospital. However, Cooley demonstrated that opening the photo and then right-clicking on the file info revealed what she purported to be the correct date. After hearing, the trial court ultimately granted the motion to compel with respect to Cooley’s cell phone directing that Plaintiff “shall make the device(s) used to take the photographs in question available for inspection to determine if metadata exists for the photographs.”
In making its determination to grant mandamus relief for Cooley, the court relied heavily on the Texas Supreme Court’s decision of In re Weekley Homes, L.P. and the principle that “[p]roviding access to information by ordering an 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.” Specifically, the court relied on the standard for electronic discovery in Weekley, which requires an evidentiary showing from the requesting party that 1) the responding party has defaulted in its obligation to search its records and produce the requested data, 2) that the responding party’s production has been inadequate, and 3) that a search of the opponent’s electronic device could recover relevant materials. The court found that despite Methodist’s concerns about the correct creation date, Methodist failed to make an evidentiary showing that the files Cooley produced lacked metadata. As a result, Cooley could not be compelled to produce her cellphone for inspection.
ABOUT THE AUTHOR:
Iris Harris is a member of the firm's appellate practice group. Iris is a native Texan and was born and raised in Nacogdoches, in the heart of the Piney Woods. She received her Bachelor of Business Administration in Business Economics from Stephen F. Austin State University and her Juris Doctor from Southern Methodist University Dedman School of Law. Before joining the firm, Iris had the privilege of serving as Briefing Attorney to Senior Chief Justice Wright of the Eleventh Court of Appeals and Staff Attorney to Justice Bruce Williams also of the Eleventh Court of Appeals. This background has provided her with a solid foundation and necessary skills in legal research which allows her to provide competent, high-quality representation to clients.
ABOUT THE FIRM:
Fletcher, Farley, Shipman & Salinas LLP is a dedicated business defense firm with offices in Dallas and Austin. The firm's attorneys leverage their extensive experience and skills as trial and appellate attorneys to achieve resolution both inside and outside of the courthouse in matters including the defense of tort litigation, business and commercial litigation, construction, insurance, employment and dispute resolution. The firm’s unique Rapid Response Team™ provides a legal forensic service that can be deployed nationwide around the clock, within moments, to assist clients in responding to catastrophic losses.
Information presented in this article is accurate as of date of publication. The information provided is not legal advice and use of this information does not create an attorney-client relationship. You should always consult an attorney for more current information, changes in the law or any other information specific to your situation.
