1 ELECTRONIC DISCOVERY - HOW TO GET IT Presented by: CHRIS NICKELSON Law Office of Gary L. Nickelson 5201 West Freeway, Suite 100 Fort Worth, Texas (817) Authored by: HEATHER L. KING KoonsFuller, P.C. 181 Grand Ave., Suite 225 Southlake, Texas (817) JESSICA H. JANICEK KoonsFuller, P.C. 181 Grand Ave., Suite 225 Southlake, Texas (817) State Bar of Texas 35 th ANNUAL MARRIAGE DISSOLUTION INSTITUTE April 26-27, 2012 Dallas CHAPTER 18
3 EDUCATION J.D., Texas Tech University School of Law, 1999 B.A., University of Texas at Austin, 1996 CHRIS NICKELSON LAW OFFICE OF GARY L. NICKELSON 5201 West Freeway, Suite 100 Fort Worth, Texas FAX: EMPLOYMENT BACKGROUND Law Office of Gary L. Nickelson, 2008-present Partner with Shannon, Gracey, Ratliff & Miller, L.L.P., Associate with Shannon, Gracey, Ratliff & Miller, L.L.P., Staff Attorney to Justice David Chew of the El Paso Court of Appeals, 2000 Law Clerk to Justice Ann McClure of the El Paso Court of Appeals, OFFICES HELD Member, Family Law Council, State Bar of Texas Family Law Section Director, Tarrant County Bar Association Board of Directors, Chair of the Tarrant County Bar Association Appellate Section, Vice-Chair of the Tarrant County Appellate Section, Secretary of the Tarrant County Appellate Section, HONORS RECEIVED Board Certified in Civil Appellate Law, 2006-present Rising Star, Texas Monthly Magazine Top Attorney, Fort Worth Magazine, CLE ACTIVITIES Author and Presenter of Post-Trial Drafting Issues, 2011 State Bar of Texas Advanced Drafting Course, December 2011, Dallas, Texas. Author and Presenter of Trying a Case with Appeal in Mind, State Bar of Texas Advanced Family Law Course, August 2011, San Antonio, Texas. Author and Presenter of Running a Law Office for Fun And Profit, 2011 State Bar of Texas Soaking Up Some CLE Seminar, South Padre, Texas. Author and Presenter of Appellate CYA, 2011 State Bar of Texas Marriage Dissolution Course, Austin, Texas. Author and Presenter of The Basics: Procedural Concerns, Parent-Child Relationships Seminar, UT CLE, January, 2011, Houston, Texas. Author and Co-Presenter of Strategies for Proving Best Interest, Parent-Child Relationships Seminar, UT CLE, January, 2011, Houston, Texas. Co-Author and Presenter of Using Summary Judgment Procedure in Family Law Cases, 2010 State Bar of Texas Advanced Family Law Drafting Course, Houston, Texas. Co-Author and Co-Presenter of Appellate Practice from Every Angle, 2010 State Bar of Texas Advanced Family Law Course. Co-Author and Presenter of Proving Separate Property: An Argument for More Use of Summary Judgment Practice in Family Law Cases, 2010 State Bar of Texas Advanced Family Law Course. Author, Impacts at Trial: Saving Your Trial from Mistakes, 10 th Annual Family Law on the Front Lines, UT CLE, July, 2010, San Antonio, Texas. Author of Finalizing the Deal: Rule 11 Agreements, Mediated Settlement Agreements, and Why Its So Important to Get Orders Timely Signed, State Bar of Texas Marriage Dissolution Course, 2010, San Antonio, Texas. Co-Author and Presenter of Preservation of Error (Including Making and Meeting Objections), 2009 Trial of Breach of Fiduciary Duty Litigation Cases, Fredericksburg, Texas. Author and Presenter of Equitable Remedies: Getting Out of Traps, Messes, and Other Problems to which You or Your Client May Have Unintentionally Agreed, 2009 State Bar of Texas Advanced Family Law Course. Course Director for the 2009 Boot Camp prior to the State Bar of Texas Advanced Family Law Course. Author and Presenter of, Appealing Your Family Law Case, 23 rd Annual Family Law Conference, South Texas College of Law, March 2009, Houston, Texas. Course Director of Family Law Essentials Seminar, October 2008, San Angelo, Texas. Co-Author of Professionalism, August 2008, Advanced Family Law Course, San Antonio, Texas. Author of Maintaining the Chain of Electronic Evidence and Spoliation of Electronic Evidence, 2008 Advanced Family Law Course.
4 Author and Presenter of Brief Writing that Appeals to Your Audience, 2008 State Bar of Texas Marriage Dissolution Course. Course Director for 2008 Brown Bag Seminar for Tarrant County Bar Association titled When Reasonable Minds Cannot Disagree: Summary Judgment Practice in Texas. Co-Author and Presenter of Extraordinary Writs: When Ordinary Relief Just Won't Do 2007 State Bar of Texas Marriage Dissolution Course, El Paso. Co-Author of Appellate Advocacy: From the Judge's Perspective; 2005 State Bar of Texas Advanced Family Law Course, Austin. Co-Author and Presenter of Like Skeet and Sporting Clay: Direct and Collateral Attacks on Judgments, August 2005 State Bar of Texas Advanced Family Law Course. Co-Author of Preservation of Error for Discovery Issues, 2005 Brown Bag Seminar for Tarrant County Bar Association, Appellate Section Co-Author of Appellate Advocate - Substantive Court of Appeals Update, for The Appellate Advocate, Author of Relief is Just an Appeal Away: Drafting With Appeal, 2003 State Bar of Texas Advanced Family Law Course. Author of Puttin' on the Writs: Mandamus, Prohibition and Habeas Corpus, 2002 State Bar of Texas Advanced Family Law Course. REPORTED CASES In re C.F.M., --- S.W.3d ----, 2012 WL (Tex.App.-Dallas, 2012, n.p.h.).. In re McCray, 2011 WL (Tex.App.-Dallas, 2011, orig. proceeding). In re McCray, 324 S.W.3d 685 (Tex.App. Dallas 2010, orig. proceeding). Johnson v. State Farm Lloyds, 290 S.W.3d 886 (Tex. 2009). Johnson v. State Farm Lloyds, 204 S.W.3d 897 (Tex.App.--Dallas 2006), aff d, 290 S.W.3d 886 (Tex. 2009). In re Vesta Ins. Group, Inc., 192 S.W.3d 759 (Tex. 2006). Etheredge v. Hidden Valley Airpark Ass n, 169 S.W.3d 378 (Tex.App. Fort Worth 2005, pet. denied). Old American Cty. Mut. Fire Ins. Co. v. Michael D. Renfrow, et al, 130 S.W.3d 70 (Tex. 2004). Citizens Nat l Bank v. Allen Rae Investments, Inc., 142 S.W.3d 459 (Tex.App. Fort Worth 2004, no pet.). Loaiza v. Loaiza, 130 S.W.3d 894 (Tex.App. Fort Worth 2004, no pet.). Boyd v. Boyd, 131 S.W.3d 605 (Tex.App. Fort Worth 2004, no pet.). U.S. Restaurant Properties Operating L.P. v. Motel Enterp. Inc., 104 S.W.3d 284 (Tex.App. Beaumont 2003, pet. denied). Old American Cty. Mut. Fire Ins. Co. v. Michael D. Renfrow, et al, 90 S.W.3d 810 (Tex.App. Fort Worth 2002), rev d by, 130 S.W.3d 70 (Tex. 2004).
5 Heather L. King KoonsFuller 181 Grand Avenue, Suite 225 Southlake, Texas (817) / fax Education/License B.A., Texas Christian University, 1987 J.D., Texas Tech University School of Law, 1995 Board Certified Family Law, Texas Board of Legal Specialization, December of 2000 Re-Certified Family Law, Texas Board of Legal Specialization, December of 2005 Re-Certified Family Law, Texas Board of Legal Specialization, December of 2010 Professional Activities Director, Officer & President, Tarrant County Bar Association Director, Officer & President, Tarrant County Family Law Bar Association Director/Officer & President, Texas Academy of Family Law Specialists, 2003 to Present Member/Officer, Family Law Council, State Bar of Texas, 2004 to Present Fellow, American Academy of Matrimonial Lawyers, 2005 to Present Member and Fellow, College of the State Bar of Texas, 1999 to Present Member, Tarrant County Young Lawyers Association, 1996 to 2002 Associate Member, Barrister & Officer, Eldon B. Mahon Inn of Court, , , , 2010 to Senior Counsel, American College of Barristers, 2001 to Present Member and/or Chairperson, Fee Arbitration Committee, Tarrant County Bar Association, 2001 to 2005 Member, State Bar of Texas, Family Law Section Checklist Committee, , Amicus Committee, , Parenting Plan Committee , Membership Committee , Legislative Committee , Awards and Scholarships Committee , Budget & Finance Committee , Publications Committee , Section History Committee , Mentoring Committee Fellow, Texas Bar Foundation 2002 to Present Fellow, Texas Family Law Bar Foundation 2004 to Present Fellow, Tarrant County Bar Foundation 2004 to Present Awards/Recognition Friend of the Inn for outstanding contributions to Eldon B. Mahon Inn of Court, 2002 President s Certification of Outstanding Achievement from Tarrant Co. Bar Assoc., 2003 Texas Super Lawyer, Texas Monthly Magazine 2003 to Present Who s Who in Executives and Professionals 2003 Top Attorneys featured in Fort Worth, Texas Magazine 2003 to Present Top Fifty Female Attorneys in Texas, Texas Monthly Magazine 2004 to 2011 Top Fifty Female Super Lawyers, Texas Monthly Magazine 2006 to Present Top 100 Lawyers in Dallas Fort Worth, Texas Monthly Magazine 2006 to Present The Best Lawyers In America 2007to present Top Women Lawyers, D Magazine, 2010 Law Related Seminar Publications & Participation Author, An Attorney Ad Litem Is Really A Lawyer, Attorney Ad Litem Training Seminar Author, Trial Preparation & Planning, Nuts & Bolts Protective Order Seminar Author, Challenging Characterization Issues: Characterizing Trusts, Employee Stock Options, Workman s Compensation Claims, And Intellectual Property, Advanced Family Law Course Author, Some Changes In The Texas Family Code, Blackstone Seminar Author/Speaker, Uncontested Divorce Outline, Pro Bono Family Law Seminar Author, Factors Affecting Property Division & Alimony, Family Law Basics From the Bench, Tarrant County Bar Association Brown Bag Seminar 1998.
6 Speaker, Practice Tips On Procedures At The Courthouse and Communicating With Court Personnel, Advanced Family Law Trial Skills Seminar Author, The Potential Effect of The New Texas Family Law Legislation Regarding Proportional Ownership, Equitable Interests, Division Under Special Circumstances, & A Look At New Legislative Provisions For Transmutation Agreements, Advanced Family Law Course Speaker, Recent Cases in Child Support, Possession & Access, 1999 Annual TADRO Conference Speaker, Filing Pleadings, Obtaining Settings, and Interacting With Court Coordinators and Clerks, Family Law Trial Skills Seminar, West Texas Legal Services PAI Program, Author, Discovery In Property Cases Under The New Rules, Advanced Family Law Course Author/Speaker, Drafting Family Law Pleadings: It s Almost All In The Manual, Nuts & Bolts Family Law & Advanced Trial Law Trial Skills Author, Deciding When You Need A Jury & Conducting Voir Dire, Nuts & Bolts Family Law & Advanced Trial Law Trial Skills Author/Speaker, Proper Drafting and Filing of Pleadings, 26 th Annual Advanced Family Law Course, Boot Camp Author, Discovery Gotta Haves: Essential Ideas for Discovery in Property and SAPCR s, Marriage Dissolution Institute Author, Discovery, Advanced Family Law Trial Skills, West Texas Legal Services PAI Program Author/Trainer, Proper Drafting and Filing of Pleadings, Nuts & Bolts Family Law Seminar, West Texas Legal Services PAI Program Trainer, Why Lawyers Lie, Nuts & Bolts Family Law Seminar, West Texas Legal Services PAI Program Presenter, Winning Trial Techniques in Property Cases, Texas Academy of Family Law Specialists Annual Trial Institute Author/Trainer, Proper Drafting and Filing of Pleadings, 2002 Family Law Seminar, West Texas Legal Services PAI Program. Trainer, Why Lawyers Lie, 2002 Family Law Seminar, West Texas Legal Services PAI Program. Author/Speaker, Discovery & Mediation, 28 th Annual Advanced Family Law Course, Family Law Boot Camp Panel Member, Use and Abuse of Legal Assistants, 28 th Annual Advanced Family Law Course Speaker, Use and Abuse of Legal Assistants, Panhandle Family Law Bar Association November Luncheon, Author/Speaker, Drafting Trial Documents With An Eye Toward Winning, Advanced Family Law Drafting Course Author/Speaker, Discovery: Tools, Techniques & Timebombs, Texas Academy of Family Law Specialists Annual Trial Institute Author/Player, Associate Judge Do s & Don t s, Tarrant County Family Law Bar Association Author/Speaker, Evaluating A Custody Case, 26 th Annual Marriage Dissolution Institute Co-Director, Family Law Boot Camp, 29 th Annual Advanced Family Law Seminar Author, Discovery in Hard Places, 29 th Annual Advanced Family Law Seminar Speaker, Practicing Law For Fun & Profit, 29 th Annual Advanced Family Law Seminar Author/Speaker, Internet Searches for Financial & Personal Information Useful in Family Law Litigation, Texas Academy of Family Law Specialists Annual Trial Institute Moderator, Effective Courtroom Advocacy, Tarrant County Bench Bar Seminar 2004 Author/Speaker, Internet Investigation of Personal Information & Assets, Marriage Dissolution Institute Director, Family Law Boot Camp, State Bar of Texas Annual Meeting Author/Speaker, Drafting 101, Basic Drafting of Pleadings, Family Law Boot Camp, State Bar of Texas Annual Meeting Author/Speaker, Investigation of Personal Information & Assets, Tarrant County Family Law Bar Association, Summer Bar Seminar Author/Speaker, Investigation of Personal Information & Assets, State Bar College Summer School Author, The Life of a Grievance & The New Disciplinary Rules, What You Don t Know Can Hurt You, 30 th Annual Advanced Family Law Seminar Director, Family Law Boot Camp, 30 th Annual Advanced Family Law Seminar Author/Speaker, Drafting 101, Basic Drafting of Pleadings, Family Law Boot Camp, 30 th Annual Advanced Family Law Seminar Author/Speaker, Investigation of Personal Information & Assets, Legal Assistant s University 2004 Author, Advanced CYA For The Family Law Attorney, Family Law Ultimate Trial Notebook 2004 Author/Speaker, Divorce Planning, Representing Small Business 2004 Assistant Director, Texas Academy of Family Law Specialists Annual Trial Institute 2005 Instructor, Marital Property, The People s Law School, Fort Worth 2005 Author/Speaker, Marital Property 101, State Bar of Texas Spring Training, Fort Worth 2005
7 Author/Speaker, Effective Use of Psychologists and Psychistrists, 28 th Annual Marriage Dissolution Institute Panelist/Moderator, Evidence and Discovery Workshop, 30 th Annual Advanced Family Law Seminar, Dallas 2005 Author/Speaker, Internet Investigation of Personal Information and Assets, Tarrant County Bar Association September 2005 Luncheon. Director, Texas Academy of Family Law Specialists Trial Institute 2006, Reno, Nevada Author/Speaker, Avoiding Divorce Disasters, Representing Small Businesses, Dallas March 23-24, 2006 Panelist/Author, 29 th Annual Marriage Dissolution Institute Bootcamp Practical Aspects of Enhancing Your Practice, How To Lose A Paralegal In 10 Days, or Keep One for 10 Years, April 19, 2006, Austin. Moderator, 29 th Annual Marriage Dissolution Institute, Electronic Evidence, April 20-21, 2006, Austin. Speaker, Being A Family Law Attorney, Tarrant County Bench-Bar, April 27, 2006, The Woodlands. Speaker, Ethics: Evidence, Discovery and Witnesses, Tarrant County Bar Association Brown Bag Luncheon, June 23, 2006, Fort Worth. Author/Speaker, 21st Century Issues Dealing with Nontraditional Relationships, 31 st Annual Advanced Family Law Seminar, August 14-17, 2006, San Antonio. Speaker, UTCLE Parenting Plan Conference, Effective Strategies For Reaching Parenting Plan Agreements, October 13, Speaker, LexisNexis CLE, Learning to Make the Texas Family Code Work for You, Navigating the Family Code, October 20, Speaker, LexisNexis CLE, Learning to Make the Texas Family Code Work for You, Helpful Appellate References, October 20, Moderator, Texas Academy of Family Law Specialists Trial Institute 2007, Sante Fe, New Mexico, Electronic Evidence Panel. Moderator, 30 th Annual Marriage Dissolution Institute, Electronic Evidence, May 10-11, 2007, El Paso. Co-Speaker, Interesting Appellate Cases, Tarrant County Family Law Bar Luncheon, May 22, Speaker/Author, UTCLE Family Law on the Front Lines, Appellate Tips for Family Law Attorneys, Galveston, Texas June 28-29, Speaker/Author, Evidence, Keeping in In and Keeping it Out, 32 nd Annual Advanced Family Law Seminar, San Antonio. Speaker, Appellate Considerations, Texas Academy of Family Law Specialists Trial Institute 2008, Sante Fe, New Mexico. Speaker, UTCLE 8 th Annual Family Law on the Front Lines, Justice Behind Closed Doors: Protecting the Record, Your Client and Yourself In Chambers, Galveston, Texas June 19-20, Speaker/Author, SBOT Advanced Family Law Drafting, Discovery, Austin, Texas, December 3-4, Speaker/Author, UTCLE Parent-Child Relationships: Critical Thinking for Critical Issues, Discovery and Evidence, A Primer for Family Law Attorneys, Austin, Texas, January 29-30, Speaker/Author, SBOT Representing Small Business, Protecting Business Before Divorce: What Every Business Lawyer Must Know About Family Law, Dallas, Texas, March 26-27, Speaker, UTCLE, 9 th Annual Family Law on the Front Lines, Electronic Evidence and Discovery, San Antonio, June 18-19, Director, 35 th Annual Advanced Family Law Seminar, Dallas, Texas, August 3-7, Speaker/Author, SBOT The Ultimate Trial Notebook: Family Law, Effective Use of Prior Testimony, San Antonio, December 3-4, Speaker/Author, UTCLE 2010 Parent-Child Relationships: Critical Thinking for Critical Issues, Discovery and Evidentiary Issues in Substance Abuse Scenarios, Austin, Texas January 28-29, Speaker/Author, SBOT Essentials of Business Law, Business Succession Planning: Protecting Business In Divorce, Dallas, Texas, April 29-30, Presiding Officer, UTCLE 10 th Annual Family Law on the Front Lines, San Antonio, Texas, July 1-2, Speaker/Author, 36 th Annual Advanced Family Law Seminar, Evidence: In or Out? San Antonio, August 9-12, Speaker/Panelist, New Frontiers in Marital Property Law, Fiduciary Litigation and Other Financial Causes of Action, Scottsdale, AZ, October Speaker/Panelist, American Bar Association Family Law Section Fall Meeting, Tech Torts and Related Difficult Evidentiary Issues, October 23, 2010, Fort Worth. Speaker/Panelist, NBI Handling Divorce Cases from Start to Finish, Exploring Custody, Visitation and Support Issues, and Ethical Perils In Divorce Practice, November 7, 2010, Fort Worth. Speaker, Tarrant County Court Coordinator s CLE, Electronic Evidence and Social Networking, February 23, 2011, Fort Worth. Speaker, Tarrant County Bench Bar, Family Law In A Nutshell, April 2, 2011, Possum Kingdom. Author/Speaker, What Every Business Attorney Needs to Know About Family Law, Essentials of Business Law, April 14-15, 2011, Houston.
8 Author/Speaker, Modern Evidence, 34 th Annual Marriage Dissolution Institute, Austin, April 28-29, Presiding Officer, Family Law on the Frontlines, june 16-17, 2011, Austin, Texas. Author/Speaker, Electronic Evidence Issues, 2011 Family Law Seminar, Legal Aid of Northwest Texas Equal Justice Volunteer Program, July 21-22, 2011, Fort Worth. Author/Speaker, 37 th Annual Advanced Family Law Seminar, Evidence, San Antonio August 1-4, Author/Speaker, Texas Advanced Paralegal Institute, Social Networking, Fort Worth, October 6-7, Speaker, Tarrant County Court Coordinator s Luncheon, Evidence and Social Networking, Fort Worth, October 11, Moderator/Panelist, New Frontiers in Marital Property Law, Remedies in Property Cases, San Diego, October 13-14, Law Related Periodical/Magazine Publications Author, Beating Out The Big Firms, Texas Lawyer, Vol. 18, No. 21, July 29, Interviewed/Quoted Divorce 101, Fort Worth Magazine, July 2003 edition. Author, Basic Internet Searches for Persons and Assets, The College Bulletin, News for Members of the College of the State Bar of Texas, Summer 2006 Law Related Books Co-Author, Texas Family Law: Direct & Cross Examination, Suggested Questions, Ideas & Outlines, Heather King, Bruce Beverly & Syd Beckman (Imprimatur Press 2000). Co-Author, Texas Family Law: Direct & Cross Examination, Suggested Questions, Ideas & Outlines, A Focus on Children, Heather King, Bruce Beverly & Syd Beckman (Imprimatur Press 2002). Co-Author, Texas Family Law: Direct & Cross Examination, Suggested Questions, Ideas & Outlines, A Focus on Property, Heather King, Bruce Beverly, Syd Beckman & Randal Wilhite (Imprimatur Press 2004). Co-Annotator for Lexis Texas Annotated Family Code 2007-Present. Co-Author, Protecting Your Assets From A Texas Divorce 2 nd Ed. (PSG Books 2009).
9 Jessica Hall Janicek KOONSFULLER, PC 181 Grand Avenue, Suite 225 Southlake, Texas voice facsimile EDUCATION Texas Wesleyan University School of Law, J.D., Cum Laude, 2009 Graduated ninth out of 145 students; top 6 %; Law Review Executive Board Articles Editor, ; Dean s List, ; Texas Wesleyan Judicial Scholarship Recipient; Wesleyan Innocence Project. Baylor University, Bachelor of Business Administration, Marketing, 2006 Dean s List WORK EXPERIENCE KoonsFuller Associate Attorney, January 2010-Present. Practice exclusively in Family Law. Combined Law Enforcement Associations of Texas (CLEAT), Fort Worth, TX, Spring Law Clerk, January 2009-May Performed legal research, drafted motions and pleadings, conducted client interviews, and assisted in arbitration for an organization defending law enforcement officers Denton County District Attorney s Office, Denton, TX, Felony Trial Intern, August 2008-January Investigatory work for all cases including contacting witnesses, researching legal issues, assisting in discovery, making plea agreements, and attending trials and hearings. Fort Worth Medical Malpractice Law Firm, Summer Law Clerk, June 2008-August Gathered legal research, drafted pleadings and motions and assisted in hearings and trials in medical malpractice, personal injury, contract law, and general civil litigation Texas Wesleyan University School of Law, Fort Worth, TX, Summer Research Assistant, May 2008-August Performed legal research in property law, oil and gas, zone usage, and land use. General Law Practice, Fort Worth, TX, Legal Assistant/Office Manager, June 2007-January Interviewed clients, performed legal research, drafted wills and contracts, assisted in family law cases, and helped with discovery. High school colorguard director, part-time at various high schools, Lead large groups of students in state and national competitions; Choreograph routines; develop/market programs; manage all business practices relating to the program. Marketing/PR for Film, TV, Radio, Music Clients, August 2005-June Booked artists and actors, reviewed film scripts, and assisted in film production and distribution; Oversaw and revamped merchandising deals, agreements, and contracts; All public relations and marketing for new media projects. PROFESSIONAL ASSOCIATIONS Ed Mahon Inns of Court Tarrant County Bar Association Tarrant County Family Law Bar Association Dallas County Bar Association Appellate Section State Bar of Texas Tarrant County Young Lawyer s Association Junior League of Fort Worth PUBLICATIONS Exploring Custody, Visitation and Support Issues, Handling Divorce Cases from Start to Finish, National Business Institute, 2010.
11 TABLE OF CONTENTS I. INTRODUCTION... 1 II. GENERAL DISCOVERY GUIDELINES... 1 III. DISCOVERY OF ELECTRONIC DATA... 2 A. A General Understanding... 2 B. Steps to E-Discovery Step 1: Understanding How to Collect Electronic Evidence... 2 a. Types of Electronic Data... 2 b. Practical Use Step 2: Understand the Data You Request Step 3: Litigation Hold on Electronic Evidence Step 4: Gathering the Electronic Info Forms of Discovery... 3 a. Request for Disclosure... 3 b. Request for Production and Inspection ). General Rules... 3 c. Application to Electronic Discovery ). Discovery Requests ). Discovery Responses ). Costs ). Forensic Experts... 5 d. Interrogatories... 5 e. Request or Motion for Entry Upon Property... 6 f. Admissions... 6 g. Depositions ). Oral Depositions ). Written Depositions ). Application to Electronic Discovery... 8 h. Subpoenas... 8 IV. OBJECTIONS AND PRIVILEGE... 8 A. Objections General Rules Specific Objections Different Types of Objections... 9 a. Mental Impressions of Experts... 9 b. Request is Unduly Burdensome, Involves Unnecessary Expense, and/or Made for the Purpose of Harassment... 9 c. Overly Broad d. Information the Responding Party Does Not Know or Possess e. Equally in the Possession of the Opposing Party f. Outside the Scope of Discovery g. Persons with Knowledge of Relevant Facts h. Creation of a Document Not in Existence i. Not a Permissible Discovery Tool j. Request is Too Vague B. Assertions of Privilege C. No Unfair Surprise V. DUTIES AND OBLIGATIONS SUR-ROUNDING ELECTRONIC EVIDENCE AND DISCOVERY A. Zubulake B. Sedona Guidelines i
12 C. Federal Rules of Civil Procedure VI. CONCLUSION APPENDIX A APPENDIX B APPENDIX C APPENDIX D APPENDIX E APPENDIX F APPENDIX G APPENDIX H ii
13 ELECTRONIC DISCOVERY - HOW TO GET IT I. INTRODUCTION Rules 176, , and 215 of the TEXAS RULES OF CIVIL PROCEDURE concentrate on discovery. 1 TEXAS RULE OF CIVIL PROCEDURE Rule sets out the permissible forms of discovery in Texas: Requests for Disclosure Requests for Production and Inspection of Documents and Tangible Things Requests and Motions for Entry Upon and Examination of Real Property Interrogatories to a Party Requests for Admission Oral or Written Depositions Motions for Mental or Physical Examinations Although not specifically included under Rule 192.1, Rule 176 concerning subpoenas provides valuable tools in obtaining discovery from nonparties. This paper discusses the various forms of discovery authorized under the TEXAS RULES OF CIVIL PROCEDURE and their applicability and assistance in the discovery of electronic evidence. II. GENERAL DISCOVERY GUIDELINES Rules 191, 192, and 193 of the TEXAS RULES OF CIVIL PROCEDURE provide general guidelines for discovery and the discovery process. 2 These rules and guidelines should always be kept in mind when drafting discovery requests and responses. The scope of discovery is generally limited to any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. 3 When responding to written discovery, a party must make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made. 4 A party has an affirmative duty to amend or supplement a response to written discovery if a party learns that the party s response was incomplete or incorrect when made or, although complete and correct when made, is no longer complete and correct. 5 A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than the named party) who was not timely identified, unless the court finds good cause for the failure and the failure will not unfairly surprise or unfairly prejudice the other parties. 6 A party s production of a document in response to written discovery authenticates the document for use against that party in any pretrial proceeding or trial unless the party objects to the authenticity of the document, or any part of it, and states the specific basis for the objection within ten days after the producing party has actual notice the document will be used. 7 Except where specifically prohibited in the TEXAS RULES OF CIVIL PROCEDURE, the procedures and limitations set forth in the rules pertaining to discovery may be modified by the agreement of the parties or by court order for good cause. 8 Every disclosure, discovery request, notice, response, and objection must be signed by the attorney representing the party. The attorney s signature on a disclosure constitutes a certification that the disclosure is complete and correct as of the time it is made, to the best of the attorney s knowledge, information, and belief, formed after a reasonable inquiry. The attorney s signature on a request, notice, response, or objection constitutes that the request, notice, response, or objection, to the best of the attorney s knowledge, information, and belief, formed after a reasonable inquiry is: (1) consistent with the rules and warranted by existing law or a good faith argument for the modification or reversal of existing law; (2) has a good faith factual basis; (3) is not interposed for any improper purpose; and (4) is not unreasonable or unduly burdensome or expensive. 9 1 TEX. R. CIV. P. 176; TEX. R. CIV. P ; TEX. R. CIV. P TEX. R. CIV. P. 191; TEX. R. CIV. P. 192; TEX. R. CIV. P TEX. R. CIV. P (a). 4 TEX. R. CIV. P TEX. R. CIV. P TEX. R. CIV. P (a). 7 TEX. R. CIV. P TEX. R. CIV. P TEX. R. CIV. P
14 III. DISCOVERY OF ELECTRONIC DATA A. A General Understanding Trial lawyers must develop a basic understanding of how electronic data and information is generated, transferred, and stored to be able to know when, where, and how to retrieve that information. It is imperative that a lawyer develops a discovery strategy early in the case so that crucial electronic information is not overlooked, lost, or destroyed. It is also helpful to begin a plan, at the outset of your case, on how to authenticate and admit the necessary electronic evidence in court. Because electronic evidence is such a new endeavor, there is little case law on the matter to assist lawyers in developing proper discovery requests. As a result, when preparing requests, you must balance the effects of creating a request that is not too specific which could inadvertently miss the information you are seeking, while on the other hand so overly broad that it draws objections. Before drafting a discovery request, it is important to consider the types of files you want to look for, the possible locations of the stored information (such as a computer hard drive, jump drive, CD-ROM, remote internet storage, handheld device, network storage, etc.), and set a reasonable time period to review the data. B. Steps to E-Discovery 1. Step 1: Understanding How to Collect Electronic Evidence a. Types of Electronic Data Family law cases typically involve four different categories of electronic data: (1) voice transmissions such as audio tape, cell phone transmissions, and voice mail; (2) computer-generated data such as spreadsheets, computer simulation, information downloaded from a GPS device, and s; (3) information from PDAs and cell phones including calendars, text messages (SMS/MMS), notes, digital photos, and address books; and (4) video transmissions. A personal computer can also contain a plethora of hidden information such as a past history of websites visited and information downloaded from the internet. Data found on a computer may also appear in one of the following forms: Live Data: Includes the currently-in-use data files and works in progress such as word processing documents, spreadsheets, and electronic calendars or address books. Replicant Data: Includes self-generated storage of documents such as information on the computer s hard drive. Archival or Backup Data: Includes the information copied to removable media such as zip drives, jump or flash drives, and CD- ROM. Hidden Data or Metadata: Includes embedded logs with information about when, where, and who accessed the system, when a document was created, and a history of the edits to a document. Residual Data: Includes the remnants of deleted files or which the file reference has been removed from the directory listings making the information invisible to most programs Internet Usage Data: Includes cache files that record internet addresses visited by the user and graphic elements of the web pages visited. Electronic evidence can be found in a variety of sources, including desktop computers, laptop computers, hard drives, removable media devices (floppy disks, tapes, CDs), PDAs, optical disks, network hard disks, network storage, remote internet storage, backup devices, archives, zip drives, personal digital assistants, cellular phones, camera phones, ipods, MP3 players, internet service providers, and other types of computer systems. b. Practical Use As an attorney, it is important to understand the various types of electronic evidence available in family law cases and their practical uses. Further, it is also imperative that you will be able to succinctly explain these pieces of evidence using the correct terminology to the Judge and how they relate to your case. As an example, let s say you request text messages from the opposing party, who promptly responds that she has no text messages on her phone. Because you have a firm understanding of electronic discovery, you would understand that although the text messages may no longer remain on the responding party s phone, or were deleted, this evidence may still be stored for a period of time on the phone company s server or in fact, could possibly still be stored on the phone of another party. As a result, you will need to be aware of the phone company s specific policy for storing messages, as although the messages may be deleted from the phone, they may not be permanently lost for the server s electronic storage. 2. Step 2: Understand the Data You Request Once you have a complete understanding of the different types of electronic evidence available to your case, narrow down the specific pieces of electronic evidence that are actually applicable to your situation. Consider items such as the pleadings, facts from your client, key witnesses, and both parties claims in order 2