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ELECTRONIC DISCOVERY - HOW TO GET IT Presented by: CHRIS NICKELSON Law Office of Gary L. Nickelson 5201 West Freeway, Suite 100 Fort Worth, Texas 76107 (817) 735-4000 Authored by: HEATHER L. KING KoonsFuller, P.C. 181 Grand Ave., Suite 225 Southlake, Texas 76092 (817) 481-2710 JESSICA H. JANICEK KoonsFuller, P.C. 181 Grand Ave., Suite 225 Southlake, Texas 76092 (817) 481-2710 State Bar of Texas 35 th ANNUAL MARRIAGE DISSOLUTION INSTITUTE April 26-27, 2012 Dallas CHAPTER 18

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 76107 817-735-4000 FAX: 817-735-1480 EMPLOYMENT BACKGROUND Law Office of Gary L. Nickelson, 2008-present Partner with Shannon, Gracey, Ratliff & Miller, L.L.P., 2005-2007 Associate with Shannon, Gracey, Ratliff & Miller, L.L.P., 2001-2004 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, 1999-2000 OFFICES HELD Member, Family Law Council, State Bar of Texas Family Law Section 2010-2015 Director, Tarrant County Bar Association Board of Directors, 2008-2009 Chair of the Tarrant County Bar Association Appellate Section, 2008-2009 Vice-Chair of the Tarrant County Appellate Section, 2007-2008 Secretary of the Tarrant County Appellate Section, 2006-2007 HONORS RECEIVED Board Certified in Civil Appellate Law, 2006-present Rising Star, Texas Monthly Magazine 2004-2010 Top Attorney, Fort Worth Magazine, 2007-2010 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.

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, 2001-2005. 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 252127 (Tex.App.-Dallas, 2012, n.p.h.).. In re McCray, 2011 WL 6152191 (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).

Heather L. King KoonsFuller 181 Grand Avenue, Suite 225 Southlake, Texas 76092 (817) 481-2710 / 481-2637 fax heather@koonsfuller.com 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 2003-2010 Director, Officer & President, Tarrant County Family Law Bar Association 1998-2003 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, 1997-98, 2001-2005, 2007-2008, 2010 to 2011. 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, 2002-2003, Amicus Committee, 2004-2008, Parenting Plan Committee 2005-2006, Membership Committee 2005-2009, Legislative Committee 2010-2012, Awards and Scholarships Committee 2010-2011, Budget & Finance Committee 2010-2011, Publications Committee 2010-2011, Section History Committee 2010-2011, Mentoring Committee 2010-2011 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 1997. Author, Trial Preparation & Planning, Nuts & Bolts Protective Order Seminar 1997. Author, Challenging Characterization Issues: Characterizing Trusts, Employee Stock Options, Workman s Compensation Claims, And Intellectual Property, Advanced Family Law Course 1997. Author, Some Changes In The Texas Family Code, Blackstone Seminar 1998. Author/Speaker, Uncontested Divorce Outline, Pro Bono Family Law Seminar 1998. Author, Factors Affecting Property Division & Alimony, Family Law Basics From the Bench, Tarrant County Bar Association Brown Bag Seminar 1998.

Speaker, Practice Tips On Procedures At The Courthouse and Communicating With Court Personnel, Advanced Family Law Trial Skills Seminar 1998. 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 1999. Speaker, Recent Cases in Child Support, Possession & Access, 1999 Annual TADRO Conference 1999. Speaker, Filing Pleadings, Obtaining Settings, and Interacting With Court Coordinators and Clerks, Family Law Trial Skills Seminar, West Texas Legal Services PAI Program, 1999. Author, Discovery In Property Cases Under The New Rules, Advanced Family Law Course 1999. Author/Speaker, Drafting Family Law Pleadings: It s Almost All In The Manual, Nuts & Bolts Family Law & Advanced Trial Law Trial Skills 2000. Author, Deciding When You Need A Jury & Conducting Voir Dire, Nuts & Bolts Family Law & Advanced Trial Law Trial Skills 2000. Author/Speaker, Proper Drafting and Filing of Pleadings, 26 th Annual Advanced Family Law Course, Boot Camp 2000. Author, Discovery Gotta Haves: Essential Ideas for Discovery in Property and SAPCR s, Marriage Dissolution Institute 2001. Author, Discovery, Advanced Family Law Trial Skills, West Texas Legal Services PAI Program 2001. Author/Trainer, Proper Drafting and Filing of Pleadings, Nuts & Bolts Family Law Seminar, West Texas Legal Services PAI Program 2001. Trainer, Why Lawyers Lie, Nuts & Bolts Family Law Seminar, West Texas Legal Services PAI Program 2001. Presenter, Winning Trial Techniques in Property Cases, Texas Academy of Family Law Specialists Annual Trial Institute 2002. 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 2002. Panel Member, Use and Abuse of Legal Assistants, 28 th Annual Advanced Family Law Course 2002. Speaker, Use and Abuse of Legal Assistants, Panhandle Family Law Bar Association November Luncheon, 2002. Author/Speaker, Drafting Trial Documents With An Eye Toward Winning, Advanced Family Law Drafting Course 2002. Author/Speaker, Discovery: Tools, Techniques & Timebombs, Texas Academy of Family Law Specialists Annual Trial Institute 2003. Author/Player, Associate Judge Do s & Don t s, Tarrant County Family Law Bar Association 2003. Author/Speaker, Evaluating A Custody Case, 26 th Annual Marriage Dissolution Institute 2003. Co-Director, Family Law Boot Camp, 29 th Annual Advanced Family Law Seminar 2003. Author, Discovery in Hard Places, 29 th Annual Advanced Family Law Seminar 2003. Speaker, Practicing Law For Fun & Profit, 29 th Annual Advanced Family Law Seminar 2003. Author/Speaker, Internet Searches for Financial & Personal Information Useful in Family Law Litigation, Texas Academy of Family Law Specialists Annual Trial Institute 2004. Moderator, Effective Courtroom Advocacy, Tarrant County Bench Bar Seminar 2004 Author/Speaker, Internet Investigation of Personal Information & Assets, Marriage Dissolution Institute 2004. Director, Family Law Boot Camp, State Bar of Texas Annual Meeting 2004. Author/Speaker, Drafting 101, Basic Drafting of Pleadings, Family Law Boot Camp, State Bar of Texas Annual Meeting 2004. Author/Speaker, Investigation of Personal Information & Assets, Tarrant County Family Law Bar Association, Summer Bar Seminar 2004. Author/Speaker, Investigation of Personal Information & Assets, State Bar College Summer School 2004. 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 2004. Director, Family Law Boot Camp, 30 th Annual Advanced Family Law Seminar 2004. Author/Speaker, Drafting 101, Basic Drafting of Pleadings, Family Law Boot Camp, 30 th Annual Advanced Family Law Seminar 2004. 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

Author/Speaker, Effective Use of Psychologists and Psychistrists, 28 th Annual Marriage Dissolution Institute 2005. 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, 2006. Speaker, LexisNexis CLE, Learning to Make the Texas Family Code Work for You, Navigating the Family Code, October 20, 2006. Speaker, LexisNexis CLE, Learning to Make the Texas Family Code Work for You, Helpful Appellate References, October 20, 2006. 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, 2007. Speaker/Author, UTCLE Family Law on the Front Lines, Appellate Tips for Family Law Attorneys, Galveston, Texas June 28-29, 2007. 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, 2008. Speaker/Author, SBOT Advanced Family Law Drafting, Discovery, Austin, Texas, December 3-4, 2008. 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, 2009. Speaker/Author, SBOT Representing Small Business, Protecting Business Before Divorce: What Every Business Lawyer Must Know About Family Law, Dallas, Texas, March 26-27, 2009. Speaker, UTCLE, 9 th Annual Family Law on the Front Lines, Electronic Evidence and Discovery, San Antonio, June 18-19, 2009. Director, 35 th Annual Advanced Family Law Seminar, Dallas, Texas, August 3-7, 2009. Speaker/Author, SBOT The Ultimate Trial Notebook: Family Law, Effective Use of Prior Testimony, San Antonio, December 3-4, 2009. 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, 2010. Speaker/Author, SBOT Essentials of Business Law, Business Succession Planning: Protecting Business In Divorce, Dallas, Texas, April 29-30, 2010. Presiding Officer, UTCLE 10 th Annual Family Law on the Front Lines, San Antonio, Texas, July 1-2, 2010. Speaker/Author, 36 th Annual Advanced Family Law Seminar, Evidence: In or Out? San Antonio, August 9-12, 2010. Speaker/Panelist, New Frontiers in Marital Property Law, Fiduciary Litigation and Other Financial Causes of Action, Scottsdale, AZ, October 28-29. 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.

Author/Speaker, Modern Evidence, 34 th Annual Marriage Dissolution Institute, Austin, April 28-29, 2011. 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, 2011. Author/Speaker, Texas Advanced Paralegal Institute, Social Networking, Fort Worth, October 6-7, 2011. Speaker, Tarrant County Court Coordinator s Luncheon, Evidence and Social Networking, Fort Worth, October 11, 2011. Moderator/Panelist, New Frontiers in Marital Property Law, Remedies in Property Cases, San Diego, October 13-14, 2011. Law Related Periodical/Magazine Publications Author, Beating Out The Big Firms, Texas Lawyer, Vol. 18, No. 21, July 29, 2002. 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).

Jessica Hall Janicek KOONSFULLER, PC 181 Grand Avenue, Suite 225 Southlake, Texas 76092 817 481-2710 voice 817 481-2637 facsimile www.koonsfuller.com jjanicek@koonsfuller.com 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, 2008-2009; Dean s List, 2006-2009; 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 2009. 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 2009. 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 2008. 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 2008. 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 2008. 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, 2003-2009. 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 2009. 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.

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... 2 1. Step 1: Understanding How to Collect Electronic Evidence... 2 a. Types of Electronic Data... 2 b. Practical Use... 2 2. Step 2: Understand the Data You Request... 2 3. Step 3: Litigation Hold on Electronic Evidence... 3 4. Step 4: Gathering the Electronic Info.... 3 5. Forms of Discovery... 3 a. Request for Disclosure... 3 b. Request for Production and Inspection... 3 1). General Rules... 3 c. Application to Electronic Discovery... 4 1). Discovery Requests... 4 2). Discovery Responses... 5 3). Costs... 5 4). Forensic Experts... 5 d. Interrogatories... 5 e. Request or Motion for Entry Upon Property... 6 f. Admissions... 6 g. Depositions... 7 1). Oral Depositions... 7 2). Written Depositions... 7 3). Application to Electronic Discovery... 8 h. Subpoenas... 8 IV. OBJECTIONS AND PRIVILEGE... 8 A. Objections... 8 1. General Rules... 8 2. Specific Objections... 9 3. 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... 10 d. Information the Responding Party Does Not Know or Possess... 10 e. Equally in the Possession of the Opposing Party... 10 f. Outside the Scope of Discovery... 10 g. Persons with Knowledge of Relevant Facts... 11 h. Creation of a Document Not in Existence... 11 i. Not a Permissible Discovery Tool... 11 j. Request is Too Vague... 11 B. Assertions of Privilege... 11 C. No Unfair Surprise... 12 V. DUTIES AND OBLIGATIONS SUR-ROUNDING ELECTRONIC EVIDENCE AND DISCOVERY... 12 A. Zubulake... 12 B. Sedona Guidelines... 12 i

C. Federal Rules of Civil Procedure... 13 VI. CONCLUSION... 13 APPENDIX A... 13 APPENDIX B... 21 APPENDIX C... 29 APPENDIX D... 59 APPENDIX E... 69 APPENDIX F... 75 APPENDIX G... 79 APPENDIX H... 81 ii

ELECTRONIC DISCOVERY - HOW TO GET IT I. INTRODUCTION Rules 176, 190-205, and 215 of the TEXAS RULES OF CIVIL PROCEDURE concentrate on discovery. 1 TEXAS RULE OF CIVIL PROCEDURE Rule 192.1 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. 190-205; TEX. R. CIV. P. 215. 2 TEX. R. CIV. P. 191; TEX. R. CIV. P. 192; TEX. R. CIV. P. 193. 3 TEX. R. CIV. P. 192.3(a). 4 TEX. R. CIV. P. 193.1. 1 5 TEX. R. CIV. P. 193.4. 6 TEX. R. CIV. P. 193.6(a). 7 TEX. R. CIV. P. 193.7. 8 TEX. R. CIV. P. 191.1. 9 TEX. R. CIV. P. 191.3.

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 emails; (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

to narrow down the evidence you are seeking and specifically tailor your discovery requests. 3. Step 3: Litigation Hold on Electronic Evidence Now that you have identified the electronic evidence that you wish to discover, you might consider sending a spoliation letter to your client and/or the opposing counsel that specifically identifies the electronic evidence you wish to preserve. The purpose of such a letter is not only to preserve the electronic evidence, but to assist in a claim of spoliation at a later time if the opposing party destroys or loses electronic data. Sample form letters both to the client and to the opposing counsel are attached to this paper. 4. Step 4: Gathering the Electronic Info. Although electronic evidence is unique, the basic discovery rules under the TEXAS RULES OF CIVIL PROCEDURE still apply and must be tailored specifically to your electronic discovery requests. 5. Forms of Discovery a. Request for Disclosure Rule 194 of the TEXAS RULES OF CIVIL PROCEDURE supplies a list of the items included in a request for disclosure. Unlike other forms of discovery, a request for disclosure is not adjustable and a party may not object or make a work product assertion to a request for disclosure. 10 Copies of all documents and other tangible items must ordinarily be served with the response. 11 If the responsive documents are too voluminous, the response must then state a reasonable time and place for the production of the documents. 12 The responding party must produce the documents at the time and place stated, unless otherwise agreed by the parties or ordered by the court, and the responding party must provide the requesting party a reasonable opportunity to inspect the documents. 13 Just as with every form of discovery, a responding party has a duty to supplement its responses reasonable reasonably promptly after the party discovers the necessity for such a response. 14 Rule 194 holds a special provision for supplemented or amended answers to subsections (c) and (d), providing that supplemented or amended answers to these subsections are not admissible and may not be used for impeachment. 15 It is important to timely supplement a party s discovery responses, as failure to do so may lead to the exclusion of sanctions or even the exclusion of evidence at trial. 16 b. Request for Production and Inspection Rule 196 addresses Request for Production and Inspection to the Parties. 17 This is a key tool in your pursuit for electronic discovery, and it is necessary to tailor these requests in such a manner that you are able to seek and preserve specific information from the responding party. 1). General Rules A request for production must specify the items to be produced or inspected, either by individual item or category, and describe with reasonable particularity each item and category. 18 The request must also specify a reasonable time and place for production. 19 If the requesting party will sample or test the requested items, the means, manner and procedure for testing or sampling must be described with sufficient specificity to inform the producing party of the means, manner, and procedure for testing or sampling. 20 To obtain the discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. 21 You should request documents with the purpose of obtaining evidence that clarifies the issues of your case. Further, your intent should be to obtain all necessary documents to prove the facts behind the allegations contained within your pleadings. Without these facts, it is not possible to make well-informed decisions about settlement or trial. With that said, although you may want to send general or basic requests, or simply use the form manual, it is better practice to specifically tailor your request and seek only those documents in which you really need to prove or defend your case. For each item or category of items, the responding party must state applicable objections, assert applicable privileges, and also state that: Production, inspection, or other requested action will be permitted as requested; 10 TEX. R. CIV. P. 194.5. 11 TEX. R. CIV. P. 194.4. 12 TEX. R. CIV. P. 194.4. 13 TEX. R. CIV. P. 194.4. 14 TEX. R. CIV. P. 193.5(b). 15 TEX. R. CIV. P. 194.6. 3 16 TEX. R. CIV. P. 193.6. 17 TEX. R. CIV. P. 196.1-196.7. 18 TEX. R. CIV. P. 196.1(b). 19 TEX. R. CIV. P. 196.1(b). 20 TEX. R. CIV. P. 196.1(b). 21 TEX. R. CIV. P. 196.4.

The requested items are being served on the requesting party with the response; Production, inspection, or other requested action will take place at a specified time and place (if the responding party is objecting to the time and place of production requested by the requesting party); or No items have been identified, after a diligent search, that are responsive to this request. 22 Save and except any objections or assertions of privilege made in the response, the responding party must produce the requested documents or tangible items within that party s possession, custody, or control at either the time and place requested in the request for production or the time and place stated in the response, unless otherwise agreed upon by the parties or ordered by the court 23 Further, the responding party must provide the requesting party a reasonable opportunity to inspect the provided documents or tangible items. 24 A responding party may produce copies instead of originals unless a question as to the authenticity of the original is raised or it would be unfair to produce copies in lieu of originals under the circumstances. 25 If the responding party does produce originals, the responding party is entitled to retain the originals while the requesting party inspects and copies them. 26 The responding party must either produce documents and tangible items as they are kept in the usual course of business or organize and label the documents and tangible items to correspond with the categories in the request. 27 c. Application to Electronic Discovery 1). Discovery Requests Rule 196.4 provides that electronic or magnetic data is discoverable in electronic or magnetic form. To obtain the discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. 28 In drafting a proper discovery request, it is important to designate the format you want for the production of the electronic evidence. Consider not only the type of data that will be produced, but also the way in which you 22 TEX. R. CIV. P. 196.2(b). 23 TEX. R. CIV. P. 196.3(a). 24 TEX. R. CIV. P. 196.3(b). 25 TEX. R. CIV. P. 196.3(b). 26 TEX. R. CIV. P. 196.3(b). 27 TEX. R. CIV. P. 196.3(b). 28 TEX. R. CIV. P. 196.4. 4 and your firm will be able to handle the electronic evidence once it is produced. 29 Ideally, you would want all of the evidence in its native electronic format, but in the real world, your firm may lack the systems and software to deal with and preserve the evidentiary integrity of all native formats. 30 Some of the typical electronic evidence a family law attorney should request should include: Word processing files Spreadsheet files Budgets Financial plans Historical expenditures Expert s financial models Financial management programs (checks, credit cards, investments) Database files Contact lists Assets E-mails Calendars Log files Browser history Network logs Audit trails Pictures Movies Videos Text messages Audio recordings Voicemail Instant messaging logs 31 In a typical family law dispute, paper production will be sufficient because the entire production will usually not go beyond a few hundred emails or e- documents. In these situations, searching and volume are not a problem and paper is a good medium. But once the volume or complexity increases beyond that which you can manage easily by memory, you are better off asking for production in electronicallysearchable formats, such as image production or native production. 32 Also consider whether to request system and file metadata if it could be important to the issues in your case. For example, it is a good idea to require 29 Craig Ball, The Plaintiff s Practical Guide to E-Discovery, Part II available at http://www.craigball.com/articles.html. 30 Id. 31 What Where, How and How to Get It In, Roberta Batley (Family Advocate Vol. 29, No. 3 2007). 32 Id.

preservation and production of email metadata when it may impact issues in the case, particularly if there are questions concerning origin, fabrication, or alteration of email. 33 2). Discovery Responses However, when producing responses to a request for electronic evidence, your response may not fit within such an easily defined category. For example, when producing email, you must decide which medium and format of production. Which container will you use for delivery? Hard copies? External hard drives? Electronic transmittal? Also, which form will you use to transmit the data? Text files (.txt,.rtf)? Native files (.PST,.NSF)? Image files such as PDF? 34 3). Costs The production, searching, and reviewing involved in electronic discovery requests often generate substantial costs. Specifically, the discovery of data on a backup system is usually a costly enterprise because these systems were not designed for easy access or for retrieving stored data. As these costs grow, the issue of who bears the burden of the increased expenses becomes the burning question. Rule 196.6 indicates that the requesting party initially bears the burden of costly production. 35 Rule 196.4 allows for costs to be shifted to the requesting party after objection and subsequent production when extraordinary steps are necessary to retrieve and produce information. Little state case law exists on this issue, but under the federal statutes and case law that do exist, however, courts have used their discretionary authority to shift the costs of electronic discovery. 36 To help determine whether an expense is undue, federal courts have adopted a different version of a balancing test that considers the following factors: (1) the specificity of the discovery requests; (2) the likelihood of discovery critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefit to the parties of obtaining the information; (6) the total cost associated with the production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party. 37 33 Id. 34 Craig Ball, Discovery of Email: The Path to Production available at http://www.craigball.com/articles.html. 35 TEX. R. CIV. P. 196.6. 36 Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) 37 Id. 5 4). Forensic Experts If you anticipate that electronic evidence may be crucial to your case, it might be worthwhile to hire a professional to document the existence and form of the evidence, as well as preserve it for trial. Such an expert can provide assistance in a variety of ways, from helping to draft the appropriate discovery requests, to analyzing the responsive data. Other roles for an expert include reconstructing previously deleted files from the producing party s system, and searching the producing party s system for occurrences of particular terms and phrases. Companies specializing in data retrieval can search and seek all types of data from deleted information to broken hard drives. Attached to this paper are sample forms that are helpful in supporting a party in the retrieval of such electronic evidence in Court with the assistance of such an electronic expert. Also keep in mind that the very act of examining a drive actually alters it. Many programs create temporary files that write over areas of the disk that may have held important clues. The key is to have someone who knows what he or she is doing capture the exact state of the hard drive without altering it. There are software applications that operate below the level of the operating system to create a bit for bit copy. You will also want your expert to be able to explain how and when he created the copy to assure the court of the reliability of the data. d. Interrogatories TEXAS RULE OF CIVIL PROCEDURE Rule 197 addresses the procedures for interrogatories. A party may serve written interrogatories to inquire about any matter within the scope of discovery except matters covered by Rule 195, essentially matters related to testifying experts. 38 Although an interrogatory may inquire whether a party makes specific factual or legal contention and may ask the party to state the legal theories and to describe in general the factual bases for the party s claims or defenses, interrogatories may not be used to require the responding party to marshal all of its available proof or the proof the party intends to offer at trial. 39 A party s requests are generally limited to 25 interrogatories, including discrete subparts. 40 As a result, it is imperative to craft each interrogatory carefully and specifically to the facts of your case. Avoid broad, form interrogatories as many of these may ask for information that may be obtained through other discovery requests, such as a request for production. Further, avoid wasting an interrogatory on 38 TEX. R. CIV. P. 197.1. 39 TEX. R. CIV. P. 197.1. 40 TEX. R. CIV. P. 190.3(b)(3).

information that you already know. For example, do not craft a question asking the responding party to detail their employment history if the requesting party is already fully aware of this information. Additionally, interrogatories, like many other forms of discovery, can be incredibly helpful in proving a tort claim, characterizing an asset, or assisting a party in gathering evidence to prove the elements of a claim provided by case or statutory law. For example, if the requesting party has made a claim of intentional infliction of emotional distress against the other party, the requesting party could craft specific interrogatory questions based on the elements of the claim in order to prove their claim. The key is to understand the relevant statutory law and case law in order to craft relevant questions. Note that even though you may craft interrogatories that are specific to your case, you may still need to develop the responding party s answers in a deposition. Regarding a party s responses, the response must include the party s answers to the interrogatories and may include applicable objections and asserts of privilege. 41 If the answer to an interrogatory may be derived or ascertained from records, the responding party may answer the interrogatory by specifying and, if applicable, producing the records or compilation, abstract, or summary of records. 42 The records from which the answer may be ascertained or derived must be specified in sufficient detail to permit the requesting party to locate and identify them as readily as can the responding party. 43 If business records are specified, the responding party must state a reasonable time and place for the examination of the document and the responding party must produce the documents at this time and place (unless otherwise agreed by the parties or ordered by the court) and must provide the requesting party a reasonable opportunity to inspect them. 44 Responses to interrogatories are required to be verified except that (1) when answers are based on information from other persons the party may so state and (2) a party need not sign answers to interrogatories about persons with knowledge of relevant facts, trial witnesses, and legal contentions. 45 e. Request or Motion for Entry Upon Property Along with requests for production and inspection, TEXAS RULES OF CIVIL PROCEDURE Rule 41 TEX. R. CIV. P. 197.2(c). 42 TEX. R. CIV. P. 197.2(c). 43 TEX. R. CIV. P. 197.2(c). 44 TEX. R. CIV. P. 197.2(c). 45 TEX. R. CIV. P. 197.2(d). 6 196 also addresses a request or motion for entry upon property. 46 At least thirty days before the end of any applicable discovery period, a party may gain entry onto designated land or other property to inspect, measure, survey, photograph, test, or sample the property or any designated object or operation thereon by serving (1) a request on all parties if the land or property belongs to a party or (2) a motion and notice of hearing on all parties and the nonparty if the land or property belongs to a nonparty. 47 The request for entry upon a party s property must state the time, place, manner, conditions, and scope of the inspection, and must also specifically describe any desired means, manner, and procedure for testing and sampling and the person or persons by whom the inspection, testing, or sampling is to be made. 48 In a response, the responding party must state objections and assert privileges as requested by the rules. 49 In addition, the responding part must also state that entry or other requested action will take place at a specified time and place, if the responding party is objecting to the time and place of production, or entry or other requested action cannot be permitted for reasons stated in the response. 50 A court may order entry onto a non-party s property only for good cause shown and only if the land, property, or object thereon as to which discovery is sought is relevant to the subject matter of the action. 51 f. Admissions TEXAS RULE OF CIVIL PROCEDURE Rule 198 concerns requests for admissions. Requests for admissions request that the other party admit the truth of any matter within the scope of discovery, including statements of opinion or of fact or of the application of law to fact, or the genuineness of any documents served with the request or others made available for inspection and copying. 52 As stated previously, specifically crafted admissions can be very useful in helping a party prove anything from tort claims to characterization of property to reimbursement. Unless the responding party states an objection or asserts a privilege, the responding party must specifically admit or deny the request or explain in detail the reasons that the responding party cannot 46 TEX. R. CIV. P. 196.7. 47 TEX. R. CIV. P. 196.7(a). 48 TEX. R. CIV. P. 196.7(b). 49 TEX. R. CIV. P. 196.7(c)(2). 50 TEX. R. CIV. P. 196.7(c)(2). 51 TEX. R. CIV. P. 196.7(d). 52 TEX. R. CIV. P. 198.1.

admit or deny the request. 53 The responding party may qualify an answer, or deny a request in part, only when good faith requires. 54 Lack of information or knowledge is not a proper response unless the responding party states that a reasonable inquiry was made but that the information known or easily obtainable is insufficient to enable the responding party to admit or deny. 55 An assertion that the request presents an issue for trial is not a proper response. 56 A timely response to a request for admission is absolutely critical, as a response not timely served is considered admitted without the necessity of a court order. 57 However, a court is absolutely not bound by deemed admissions if the request was inappropriate because it pertained to matters the responding party could not have known or matters solely within the trial court s discretion. 58 A response that is deemed admitted under Rule 198 is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. 59 A court may permit the party to withdraw or amend the admission if (1) the party shows good cause for the withdrawal or amendment; and (2) the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be sub-served by permitting the party to amend or withdraw the admission. 60 g. Depositions 1). Oral Depositions The rules regarding oral depositions can be found in Rule 199. A notice of intent to take an oral deposition must be served on the witness and all parties a reasonable time before the deposition is taken. 61 The notice must state the name of the witness and state a reasonable time and place for the deposition. 62 The notice must also state whether the deposition is to be taken by telephone or other remote electronic means and identify those means. 63 If a deposition is to be recorded by other than stenographic means, such as videotape recording, the party must serve on the witnesses and all parties, at least five days prior to the deposition, a notice (either in the deposition notice or separately) that the deposition will be recorded by other than stenographic means. 64 The notice may state whether the party intends to have any persons other than the witness, parties, spouses of parties, counsel, employees of counsel, and officer taking the deposition attend the deposition. 65 The notice may also include a request that the witness produce documents or tangible things within the scope of discovery and within the witness s possession, custody, or control at the deposition. 66 A document request as part of a deposition notice is also governed by Rules 176 and 205 for a non-party request and Rules 193 and 196 for a request to a party. 2). Written Depositions Rule 200 governs depositions on written questions. A party may take the testimony of any person or entity by deposition of written questions before any person authorized by law to take deposition on written questions. 67 The contents pertaining to the notice must comply with the rules outlined above applying to oral depositions. 68 A notice of intent to take the deposition must be served on the witness and all parties at least twenty days before the deposition is taken. 69 The direct questions to be propounded to the witness must be attached to the notice. 70 Within ten days after the notice and direct questions are served, any party may object to the direct questions and serve cross-questions on all other parties. 71 Within five days after cross-questions are served, any party may object to the cross-questions and serve redirect questions of all other parties. 72 Objections to re-cross questions must be served within five days after the earlier of when re0cross questions are served or the time of the deposition on written questions. 73 Objections to the 53 TEX. R. CIV. P. 198.2(b). 54 TEX. R. CIV. P. 198.2(b). 55 TEX. R. CIV. P. 198.2(b). 56 TEX. R. CIV. P. 198.2(b). 57 TEX. R. CIV. P. 198.2(c). 58 Satterfield v. Huff, 768 s.w.2d 839 (Tex. App. Austin 1989, writ denied). 59 TEX. R. CIV. P. 198.3. 60 TEX. R. CIV. P. 198.3. 61 TEX. R. CIV. P. 199.2(a). 62 TEX. R. CIV. P. 199.2(b). 7 63 TEX. R. CIV. P. 199.2(b)(3). 64 TEX. R. CIV. P. 199.1(c). 65 TEX. R. CIV. P. 199.2(b)(4); Id. at 199.5(3). 66 TEX. R. CIV. P. 199.2(b)(5). 67 TEX. R. CIV. P. 200.1(a). 68 TEX. R. CIV. P. 200.1(b). 69 TEX. R. CIV. P. 200.1(a). 70 TEX. R. CIV. P. 200.3(a). 71 TEX. R. CIV. P. 200.3(a). 72 TEX. R. CIV. P. 200.3(a). 73 TEX. R. CIV. P. 200.3(a).

form of a question are waived unless asserted in accordance with the rule. 74 When conducting the deposition, the deposition officer must (1) take the deposition on written questions at the time and place designated, (2) record the testimony of the witness under oath in response to the questions, and (3) prepare, certify, and deliver the deposition transcript in accordance with Rule 203. 75 3). Application to Electronic Discovery It is important to incorporate electronic evidence issues into your depositions whenever necessary. For example, know how to do something as small as prove up a person s Facebook page during a deposition. Sample deposition questions pertaining to social networking sites are attached to this paper. Or, you may have a more complicated situation, for example, in which you will need to depose the opposing party or an employee of said party pertaining to a business of the marriage. Understand the correct terminology so that you can determine from the witness where data is being created, if it is being destroyed, where it is kept, back up procedures used, and any other persons with relevant knowledge that you may wish to depose in the future. h. Subpoenas Rule 205 of the TEXAS RULES OF CIVIL PROCEDURE addresses discovery from non-parties and, specifically, subpoenas. A party seeking discovery by subpoena from a nonparty must serve, on the nonparty and all parties, a copy of the form of notice required under the rules governing the applicable form of discovery. 76 An attorney authorized to practice in the State of Texas may issue a subpoena pursuant to Rule 176.4. 77 A person may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served. 78 The subpoena must be issued in the name of the State of Texas and include the style and cause number, date of issue, identity of person to whom the subpoena is directed, the time, place, and nature of action required by person to whom the subpoena is directed, the identity of the party having the subpoena issues and the party s attorney, the contempt language contained in TEXAS RULE OF CIVIL PROCEDURE 176.8(a), and the signature of the issuing party or attorney. 79 A party may challenge a subpoena by filing a motion for protective order. 80 A subpoena may be used for a variety of measures in order to obtain electronic evidence. For example, once you have obtained information about a party s social networking profile, try a subpoena to that particular networking site in order to seek details such as the party s username, password, and login time to the site. Additionally, with regards to text messages as stated above, text messages may not be necessarily lost simply because they have been deleted on the user s phone. Instead, a subpoena to the network provider may provide you with copies of the relevant messages. IV. OBJECTIONS AND PRIVILEGE A. Objections 1. General Rules Rule 193.2 of the TEXAS RULES OF CIVIL PROCEDURE sets forth the general rules for objecting to written discovery. The objection to written discovery must be written and contained within the actual response or a separate document, within the time allowed for the actual response. 81 The objection must state specifically its legal or factual basis and the extent of refusal of compliance. 82 Failure to properly object, to object within the time period allotted, or to obscure the response with numerous, unfounded objections waives the objection unless the court excuses the waiver for good cause shown. 83 The portion of the request the responding party does not object to must be specifically complied with, unless it is unreasonable to do so without obtaining a ruling on the objectionable portion. 84 When objecting to the time and place of production, the objecting party must state a reasonable time and place for production and must comply with that statement without further court order. 85 Further, objections must only be made in good faith that a factual and legal basis for the objection exists at the time it is made. 86 79 TEX. R. CIV. P. 176.1. 80 TEX. R. CIV. P. 176.6(e); TEX. R. CIV. P. 192.6. 81 TEX. R. CIV. P. 193.2(a). 74 TEX. R. CIV. P. 200.3(c). 75 TEX. R. CIV. P. 200.3(c). 76 TEX. R. CIV. P. 205.2. 77 TEX. R. CIV. P. 176.4. 78 TEX. R. CIV. P. 176.3. 8 82 TEX. R. CIV. P. 193.2(a). 83 TEX. R. CIV. P. 192.3(e); see In re Gore, 251 S.W.3d 696, 700-01 (Tex. App. San Antonio 2007, no pet.). 84 TEX. R. CIV. P. 193.2(b). 85 TEX. R. CIV. P. 193.2(b). 86 TEX. R. CIV. P. 193.2(c).

When the responding party has filed its objections and responses to written discovery, the responding party may then amend or supplement its objections to include additional or new bases for objections that were inapplicable, were not known, or could not have reasonably been known at the time of the initial response. 87 Texas Practice Tip: Make sure to note the difference between responding to discovery when you represent a party as opposed to a non-party. While the rules allow thirty days for a response by a party, Rule 205.3 simply provides that the requesting party allow a reasonable time for a response. 88 2. Specific Objections When drafting objections, each objection must be specifically described as to its factual and legal basis pertaining to each discovery request. 89 It is insufficient to simply state that a request is unduly burdensome or unnecessarily harassing. 90 Instead, a party resisting discovery must be prepared to produce evidence to support its allegations. 91 3. Different Types of Objections a. Mental Impressions of Experts A party may object to a discovery request on the basis that it seeks information related to the identity, mental impressions, opinions, and/or documents or tangible things of consulting experts either informally consulted by or specially retained in anticipation of litigation or preparation for trial which were not reviewed by a testifying expert witness. 92 Pursuant to Rule 192.3, the identity, mental impressions and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. 93 b. Request is Unduly Burdensome, Involves Unnecessary Expense, and/or Made for the Purpose of Harassment Generally, a party is entitled to obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action [and which] appears reasonably calculated to 87 TEX. R. CIV. P. 193.2(d). 88 TEX. R. CIV. P. 193.2(a). 205.3(b). 89 TEX. R. CIV. P. 193.2(a). 90 See In re American Home Assur. Co., 88 S.W.3d 370 (Tex. App. Texarkana 2002). 91 Id. 92 TEX. R. CIV. P. 192.3(e). 93 TEX. R. CIV. P. 192.3(e). 9 lead to the discovery of admissible evidence. 94 However, discovery should be limited to those methods which are more convenient, less burdensome, less expensive, or when the burden or expense of the proposed discovery outweighs the likely benefit. 95 Rule 192.4 specifically takes into account the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery when determining if the burden or expense of the discovery outweighs its benefit. 96 A party seeking to avoid responding to a request based on undue burden or unreasonable expense has the burden to prove that the request will impose an undue burden or unreasonable expense. 97 However, merely showing that the discovery request is harassing and burdensome is not enough. 98 The responding party must instead show that the request is unduly burdensome or for an improper purpose. 99 Although many discovery requests and depositions may be burdensome and harassing, it is only the undue burden that would warrant nonproduction from the responding party. 100 Additionally, discovery may not be used simply as a fishing expedition in order to impose reasonable expenses on the responding party. 101 Texas Practice Tip: In order to make your objection as specific as possible, insert specific factual assertions as to the reason for non-production. For example, if the requesting party has asked for ten years of credit or bank card statements, and the company has indicated that it is going to cost $1.00 a page from the company to get anything further back than three years, indicate this in your objection as to why the request is not only unduly burdensome, but unnecessarily expensive. If you have the information, go ahead and specifically identify it in your objection. 94 TEX. R. CIV. P. 192.3(a); see Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125, 127 (Tex. 1995). 95 See In re West, 2009 WL 946847, at *2 (Tex. App. El Paso 2009) (citing In re Alford Chevrolet-Geo, 997 S.W.2d 173 (Tex. 1999). 96 TEX. R. CIV. P. 192.4(b). 97 See In re Campbell, 2010 WL 3431712, at *2-3 (Tex. App. Austin 2010) (citing Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987)). 98 In re Campbell at 2. 99 Id. 100 Id. 101 In re Alford at 181; TEX. R. CIV. P. 192.6(b).

c. Overly Broad As stated above, the requesting party may obtain discovery of matters that are not privileged and relevant to the subject matter in the pending action, and to the extent that the discovery sought is reasonably calculated to lead to the discovery of admissible evidence. 102 However, discovery requests are limited by a legitimate interest to avoid overly broad requests. 103 Discovery requests must be limited in time, place, and subject matter. 104 If the request is not limited in such a manner, it is overbroad. 105 Fishing for evidence is also impermissible. 106 A fishing expedition for evidence occurs when discovery requests are not narrowly tailored and are overly broad. 107 For example, a request that asked for all complaints that would result in a twenty-state search for documents over a five-year period is overly broad as a matter of law. 108 d. Information the Responding Party Does Not Know or Possess Under TEXAS RULE OF CIVIL PROCEDURE Rule 193.1, the responding party is required to make a complete response based on all information reasonably available to the responding party or its attorney at the time the response is made. 109 Thus, the responding party only has to make a response as to the information reasonably available to the responding party. Although reasonably available is not defined under Rule 193.1, the discovery rules may still require a party to reach information that it may not necessarily have in its physical possession. 110 For example, in response to a request for production under Rule 192.3(b), a responding party is required to produce a document or tangible thing that is within that person s 102 TEX. R. CIV. P. 192.3(a). 103 Lunsmann v. Spector, 761 S.W.2d 112 (Tex. App. -- San Antonio 1988, on writ). 104 See In re Xeller, 6 S.W.3d 618, 625-26 (Tex. App. Houston [14 th Dist.] 1999). 105 See Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995). 106 K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996). 107 See In re Sears, Roebuck & Co., 146 S.W.3d 328, 333 (Tex. App. Beaumont 2004). 108 Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). 109 TEX. R. CIV. P. 193.1. 110 See In re Certain Underwriters at Lloyd s London, 294 S.W.3d 891, 903 (Tex. App. Beaumont 2009). 10 possession, custody, or control. 111 The terms possession, custody, or control are defined to mean that the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has possession of the item. 112 As a result, the responding party s duty to produce is not always complete by producing the documents in its physical possession, but may extend to documents or items in the possession of other persons over which documents or items the responding party has custody or control. 113 As a general rule, keep in mind that if new information becomes available after you have already made a response, you must timely amend or supplement your responses as addressed above. e. Equally in the Possession of the Opposing Party One of the most common discovery objections I use in my practice is an objection based on the duplicative or cumulative nature of the discovery request. Under Rule 192.4 of the TEXAS RULES OF CIVIL PROCEDURE, discovery should be limited if it is unreasonably cumulative or duplicative. 114 For example, if a discovery request seeks documents or items that are already in the possession of the opposing party, or which the requesting party has previously provided, this is duplicitous in nature. 115 The Texas Supreme Court has held that there is no reason to require a party to produce the same information simply in a different form. 116 f. Outside the Scope of Discovery As discussed in more detail above, discovery is permitted of any matter that is not privileged and is relevant to the subject matter of the pending action, so long as it appears reasonably calculated to lead to admissible evidence. 117 Thus, irrelevant information, privileged matters, and matters not reasonably calculated to lead to admissible evidence, all fall outside the scope of discovery. 118 111 TEX. R. CIV. P. 192.3(b). 112 TEX. R. CIV. P. 192.7(b); In re Underwriters, 294 S.W.3d at 903. 113 In re Underwriters, 294 S.W.3d at 903. 114 TEX. R. CIV. P. 192.4. 115 See Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558, 559 (Tex. 1992). 116 Id. 117 TEX. R. CIV. P. 192.3(a). 118 TEX. R. CIV. P. 192.3(a).

Further, Rule 197.1 specifically addresses the use of interrogatories and their scope. 119 Under Rule 197.1, interrogatories may not be used to require the responding party to marshal all of its available proof or the proof the party intends to offer at trial. 120 An objection that a request for production requires the responding party to marshal all evidence is also proper. 121 For example, in In re TIG Ins. Co., the requesting party propounded requests that essentially requested the responding party to produce all documents supporting its contentions and defenses to its case. 122 However, the Beaumont Court of Appeals held that the requests to produce failed to specify with reasonable particularity the documents to be produced, and were thus outside the scope of discovery. 123 Thus, the responding party s objection that the requests required the responding party to marshal all of its evidence was sufficient to place the court on notice of its objection. 124 g. Persons with Knowledge of Relevant Facts The Texas Supreme Court has held that it is inappropriate to seek information from the responding party related to the knowledge of a person with knowledge of any relevant facts. 125 Under the Rules, it is the requesting party s burden to depose each person, who is identified as having knowledge of relevant facts, in order to determine how much and exactly what knowledge that person has. 126 h. Creation of a Document Not in Existence Under the current TEXAS RULES OF CIVIL PROCEDURE, it is improper for the requesting party to propound a request that requires the responding party to create a document or list that is not currently in existence. 127 The responding party is only required to produce documents that are in existence at the time the response is made. 128 119 TEX. R. CIV. P. 197.1. 120 TEX. R. CIV. P. 197.1. 121 See In re TIG Ins. Co, 172 S.W.3d 160, 167-68 (Tex. App. Beaumont 2005). 122 In re TIG Ins. Co., 172 S.W.3d at 167-68. 123 Id. at 168. 124 Id. 125 Housing Authority of El Paso v. Rodriguez-Yepez, 843 S.W.2d 475, 476 (Tex. 1992). 126 Id. at 476. 127 McKinney v. Nat l Union Fire Ins. Co., 772 S.W.2d 72, 74-75 (Tex. 1989) 128 Id. 11 i. Not a Permissible Discovery Tool One type of objection commonly used is an objection to a request that seeks to propound discovery from the requesting party in a format not allowed by the TEXAS RULES OF CIVIL PROCEDURE. For example, Rule 195.1 permits a party to designate and disclose information concerning testifying expert witnesses only through a Rule 194 request for disclosure and through depositions and reports. 129 Thus, a discovery request in any other form seeking this information would be objectionable. j. Request is Too Vague An objection can also be made to the discovery request because it is so vague that the responding party is, in good faith, unable to ascertain what information is requested. As stated above, requests for production and interrogatories must be specific, must establish materiality, must recite exactly what the requesting party is seeking, and does not permit a general inspection of the responding party s records. 130 A request for all evidence that supports an opposing party s allegations, but which does not identify any type of documents is nothing more than an improper request to pursue all evidence that the responding party might have. 131 Texas Practice Tip: Note that when objecting to the terms any and all documents, this objection is certainly not automatic. The term any and all does not by itself violate the specificity requirements of Loftin, just as long as the request itself is specifically restricted to a certain type or class of documents. 132 B. Assertions of Privilege TEXAS RULE OF CIVIL PROCEDURE Rule 193.3 governs the assertion of privileges. A party may assert a privilege and withhold the privilege information as applicable. The response to the discovery request or a separate document must state that (1) the information or material responsive to the request has been withheld, (2) the request to which the information relates, and (3) the privilege or privileges asserted. 133 A general assertion that a privilege is being asserted will not suffice. Each privilege must be specifically asserted throughout the responses, and then the responses need to be amended or supplemented to add new privileges 129 TEX. R. CIV. P. 195.1. 130 See Davis v. Pate, 915 S.W.2d 76, 78-79 (Tex. App. Corpus Christi 1996) (citing Texaco, Inc, 898 S.W.2d at 815); Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989). 131 Davis, 915 S.W.2d at 79. 132 Davis, 915 S.W.2d at 79. 133 TEX. R. CIV. P. 193.3(a).

as new responses are made and documents are produced. 134 When a responding party asserts a privilege, the requesting party may make a written request that the information withheld be identified. 135 Within fifteen days of receiving such a request, the withholding party must serve a response describing the information withheld that enables the requesting party to assess application of the privilege without revealing the privileged information itself or waiving the privilege. 136 The response must assert a specific privilege for each group of items withheld. 137 C. No Unfair Surprise TEXAS RULE OF CIVIL PROCEDURE Rule 193.6 provides that if a party fails to timely make, amend, or supplement a discovery response in a timely manner, that party may still establish an exception of no unfair surprise to prevent the exclusion of the evidence. 138 The burden is on the party attempting to establish good cause or the lack of unfair surprise or unfair prejudice. 139 Remember, when all else fails, do not forget to make an allegation of no unfair surprise in order to attempt to keep the Judge from excluding your evidence. V. DUTIES AND OBLIGATIONS SUR- ROUNDING ELECTRONIC EVIDENCE AND DISCOVERY Over the past few years, case and statutory law have begun to outline the duties and obligations of parties to litigation with respect to electronic discovery and evidence. The majority of cases and scholoary articles addressing electronic discovery involve civil litigation and business organizations. Though family law typically does not involve large organizations with lots of electronic data, it is becoming increasingly difficult to have a family law case that does not involve some sort of electronic data, such as email, myspace pages, or websites. The developing case and statutory law provides important guidelines for any litigator to keep in mind when dealing with electronic evidence and discovery. A. Zubulake In a series of opinions culminating in what is commonly referred to as Zubulake V, Judge Schendlin 134 TEX. R. CIV. P. 193.3(a). 135 TEX. R. CIV. P. 193.3(b). 136 TEX. R. CIV. P. 193.3(b)(1). 137 TEX. R. CIV. P. 193.3(b)(2). 138 TEX. R. CIV. P. 193.6(b). 139 TEX. R. CIV. P. 193.6(b). 12 of the Southern District of New York announced what have now become significant protocols for counsel s responsibilities surrounding electronic discovery and evidence. 140 One of the primary obligations the Zubulake opinions address is the duty to preserve electronic evidence when a party reasonably anticipates litigation. 141 Zubulake V provides three steps counsel should take to ensure compliance with a party s preservation obligation: 1. Counsel must issue a litigation hold at the beginning of litigation or whenever litigation is reasonably anticipated. The hold should be re-issued periodically so that new employees are aware of it and all employees are reminded of their duties. 2. Counsel should communicate directly with key players in the litigation (i.e. people identified in a party s initial disclosure and any supplemental disclosure). 3. Counsel should instruct all employees to produce electronic copies of their relevant active files and make sure that all backup media which the party has a duty to retain is identified and stored in a safe place. 142 A litigation hold notice should describe the matter at issue, provide specific examples of the types of information at issue, identify potential sources of information, and inform recipients of their legal obligations. 143 Case law is clear that a party does not have to preserve information that is not relevant. 144 B. Sedona Guidelines The Sedona Conference, a working group composed of lawyers, consultants, academics, and jurists, has also published a series of articles on the management of and best practices regarding electronic evidence. Primarily aimed at organizations, the Sedona 140 Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004); 141 See Zubulake V, 228 F.R.D. 422; The Sedona Conference Commentary on Legal Holds: The Trigger and The Process, 1 (Conor R. Crowley et al. eds, The Sedona Conference 2007). 142 See Zubulake V, 228 F.R.D. 422; The Sedona Conference Commentary on Legal Holds, 12. 143 The Sedona Conference Commentary on Legal Holds, 12. 144 See Zubulake v. UBS Warburg (Zubulake IV), 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (stating, Must a corporation, upon recognizing the threat of litigation, preserve every shred of paper, every e-mail or electronic documents, and every backup tape? The answer is clearly, no. Such a rule would cripple large corporations. )

Conference published the following guidelines for managing electronic information and records: An organization should have reasonable policies and procedures for managing its information and records. An organization s information and records management policies and procedures should be realistic, practical and tailored to the circumstances of the organization. An organization need not retain all electronic information ever generated or received. An organization adopting an information and records management policy should also develop procedures that address the creation, identification, retention, retrieval and ultimate disposition or destruction of information and records. An organizations policies and procedures must mandate the suspension of ordinary destruction practices and procedures as necessary to comply with preservation obligations related to actual or reasonably anticipated litigation, government investigation or audit. 145 The Sedona Conference has also devised the following guidelines to determine when litigation is reasonably anticipated and when a duty to take affirmative steps to preserve relevant information has arisen: Reasonable anticipation of litigation arises when an organization is on notice of a credible threat it will become involved in litigation or anticipates taking action to initiate litigation. The adoption and consistent compliance with a policy defining a preservation decisionmaking process is one factor that demonstrates reasonableness and good faith in meeting preservation obligations. The adoption of a process for the reporting a threat of litigation to a responsible decision maker is a factor that demonstrates reasonableness and good faith. The determination of whether litigation is reasonably anticipated should be based on good faith and reasonably evaluation of relevant facts and circumstances. Judicial evaluation of an organization s legal hold decision should be based on the good faith and reasonableness of the decision (including whether a legal hold is necessary and how the legal hold should be executed) at the time it was made. 146 C. Federal Rules of Civil Procedure The FEDERAL RULES OF CIVIL PROCEDURE were amended on December 1, 2006 to address the discovery of electronically stored information. Among the changes: Amended Rule 26(b)(2)(B) states that a party does not need to provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. Amended Rule 34 includes electronically stored information as a category for which any party may request any other party in an interrogatory to produce and inspect, copy, test or sample. Amended Rule 37(f) provides that, absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. VI. CONCLUSION Although the TEXAS RULES OF CIVIL PROCEDURE are the general guidelines to follow, remember that as long as you are in your legal bounds, get as creative as possible. Even if one medium resists a subpoena, or you fail to find information from a party s subpoena, that same electronic information may be found from another source. Electronic evidence leaves a trail. For example, growing sites such as Facebook are now allowing users every opportunity to become interfaced with its programs 24 hours a day, seven days a week. A person can link their Facebook account to their twitter, to their phone, can receive email updates for almost anything imaginable, and can even receive text message updates if requested. If you are unsuccessful in one place in your discovery of the evidence, try, try again. 145 The Sedona Guidelines: Best Practice Guidelines and Commentary for Managing Information and Records in the Electronic Age, iv-v (Charles R. Ragan et al. eds, The Sedona Conference 2005). 13 146 The Sedona Conference Commentary on Legal Holds, 3.

CAUSE NO. 231-123456-11 IN THE MATTER OF IN THE DISTRICT COURT THE MARRIAGE OF WIFE AND HUSBAND 231 ST JUDICIAL DISTRICT AND IN THE INTEREST OF CHILD, MINOR CHILD TARRANT COUNTY, TEXAS EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, ELECTRONIC PROTECTIVE ORDER AND MOTION TO GAIN ACCESS TO IPAD AND IPHONE This Emergency Motion for Temporary Restraining Order, Electronic Protection Order, and Motion to Gain Access to IPad and IPhone (hereinafter referred to as Motion ) is brought by WIFE, Petitioner in this case (hereinafter referred to as Movant ), who respectfully shows in support: 1. This request is brought by WIFE. HUSBAND is the Respondent in this case and Respondent to this motion (hereinafter referred to as Respondent. ) A. Summary of Relief Requested 2. Movant requests the Court to authorize an expert, EXPERT, Computer Company, L.L.C., 123 Park Drive, Suite A, Plano, Texas 76092, to immediately seize Respondent s computer(s), hard drive(s), and Blackberry and/or iphone and/or ipad and/or cell phone, as well as external storage devices and other electronic devices, for the purposes of forensically imaging said equipment. A forensic image will be made on-site, to be completed within 12 hours from when EXPERT begins the process of making the forensic image. Movant further requests the Court to immediately and temporarily restrain Respondent for the purposes of protecting and obtaining the information contained on the devices above, as specifically described herein below. EMERGENCY MOTION FOR TRO, ELECTRONIC PO, AND MOTION TO GAIN ACCESS TO IPAD AND IPHONE PAGE 1 15

B. Background 3. Movant believes that Respondent has engaged in behavior which reveals a tendency to engage in conduct which is harmful to the parties minor child, using his iphone or ipad. Information contained on these devices is critical for determining whether Respondent has in fact engaged in such activity and is therefore necessary to protect the best interests of the child. 4. Movant believes that Respondent has engaged in personal and business activity on his electronic devices that would serve to diminish the parties community estate. Information contained on these devices is critical for the preservation and protection of the community estate and in order to assist the Court in assessing a just and right division of the estate. C. Imminent and Irreparable Harm to Movant 5. Movant requests the Court to dispense with the issuance of a bond, and requests that Respondent be temporarily restrained immediately for the purposes of protecting and obtaining the information contained on the computers as requested herein below. 6. Movant s primary concern regarding the information believed to be on Respondent s iphone and ipad is that there is a substantially high risk of deletion, corruption, and/or revision regarding the information contained within these electronic devices. Furthermore, electronic files can be revised, moved, corrupted, or deleted any time work is performed on the computer, whether or not the work involves the particular file or not. Specifically, files can be altered automatically by maintenance programs (some of which run in the background), including but not limited to defragmenting and scandisk. Further, running any software updates can alter files. If deletion occurs, the files are subject to being overwritten by new data immediately. This could include the simple act of booting up or shutting down the device. Although it is true that even when a file is deleted some materials may be resurrected through electronic evidence service providers ( EESPs ), using scrubber software, it is possible for anyone to erase electronic files to a degree in which even EESPs are unable to retrieve information. Technology has advanced to the point that anyone may purchase data spoliation software online for $29.99, which is easy enough for a lay person to use to permanently delete files and the internet history on a computer or handheld device. EMERGENCY MOTION FOR TRO, ELECTRONIC PO, AND MOTION TO GAIN ACCESS TO IPAD AND IPHONE PAGE 2 16

7. Movant believes that if these electronic files are deleted or corrupted to a degree where they cannot be recovered, a spoliation instruction would be insufficient to protect her rights. Movant believes that if these hard-copy documents are destroyed, a spoliation instruction would be insufficient to protect her rights. D. Request for Temporary Restraining Order 8. Movant therefore requests that the Court enter a Temporary Restraining Order requiring Respondent to immediately produce all personal and business iphones and ipads in Respondent s possession or subject to his control. In the alternative, Movant requests the Court require Respondent to allow an on-site inspection of said devices within 24 hours from the date of entry of the order on this motion for inspection and copying. 9. Movant further requests that the Court enter a Temporary Restraining Order prohibiting and restricting Respondent from altering, using, modifying, deleting, selling, transferring, or in any other way jeopardizing any electronic files relevant to this lawsuit, including but not limited to all files and data on his personal and business cellular phones, laptops, computers and any other electronic devices, and from instructing anyone to do so on his behalf until EXPERT completes the forensic image of the hard drives of the computers. Movant further requests the Court to order that Respondent is prohibited and restricted from communicating with any person in any manner, including but not limited to, by way of his cellular telephone, other telephone, or email until Computer Company, L.L.C., has completed the forensic image of the hard drives of the computers and of the other electronic devices. 10. If Movant s request for a Temporary Restraining Order is not granted, harm is imminent because Respondent could destroy electronic evidence and documents which could be essential in Movant s case. 11. This Temporary Restraining Order is necessary for the protection and preservation of the community estate and for the best interest of the child the subject of this suit. E. Request to Gain Access and Image Hard Drives of iphone and ipad 12. Movant respectfully requests this Court to authorize EXPERT, Computer Company, L.L.C., 123 Park Drive, Suite A, Plano, Texas 76092, immediate access to Respondent s iphone and/or ipad, and make a forensic image of the equipment EMERGENCY MOTION FOR TRO, ELECTRONIC PO, AND MOTION TO GAIN ACCESS TO IPAD AND IPHONE PAGE 3 17

at that time on site, including imaging or copying information from websites that Respondent visits, all of which should take no more than 12 hours. Specifically, Movant requests the Court to order that Respondent turn over his iphone or ipad to EXPERT, and to allow EXPERT to follow him immediately following the hearing on this motion to his place of residence or employment, or wherever said electronic devices may be found at this time. Movant requests the Court to authorize EXPERT to take the forensic image(s) of said devices to his office to be analyzed, and the equipment will be left with Respondent. In the alternative, Movant requests the Court require Respondent to allow an on-site inspection of the devices within 3 days from the date of entry of the order on this motion. 13. Movant requests the Court to authorize Computer Company, L.L.C., to proceed as follows after analyzing the data contained on the forensic image of the iphone and ipad: a. Computer Company, L.L.C. shall not share any information with attorney for Movant; b. Computer Company, L.L.C. shall provide Respondent, by and through Respondent s attorney of record, any information pertaining to this case, which are found on Respondent s iphone or ipad; c. Respondent and Respondent s attorney shall review the information provided to Respondent by Computer Company, L.L.C., and create a log of privileged information contained therein in a timely manner; and d. Computer Company, L.L.C., shall then extract information identified as privileged in Respondent s log from the information pertaining to this case, and turn the rest over to Movant. 14. Once the Court has conducted its in camera review of the information pertaining to this case turned over to the Court by Computer Company, L.L.C., Movant requests that the Court order Respondent to produce said information to Movant, as the Court finds appropriate. 15. If the Court denies this motion or allows any time to elapse in which Respondent may alter or delete any files or data from his computer, Movant will likely be caused irreversible harm, for which there is no remedy at law or in equity. 16. Movant also requests the Court to order Respondent to pay all of the costs of Computer Company, L.L.C. s work, and requests that these expenses be taxed to Respondent under Texas Rule of Civil Procedure 143 as costs and be ordered paid directly to Law Firm, P.C., 123 Legal Avenue, Ste 18, Fort Worth, Texas 76092, who may enforce the order for fees in its own name. EMERGENCY MOTION FOR TRO, ELECTRONIC PO, AND MOTION TO GAIN ACCESS TO IPAD AND IPHONE PAGE 4 18

F. Attorneys Fees, Expenses, Costs, and Interest 17. It was necessary for Movant to secure the services of Law Firm, P.C., consisting of licensed attorneys, to prepare and prosecute this suit. For services rendered in connection with issues involving property division, conservatorship and support of the children, judgment for attorneys fees, expenses, and costs through trial and appeal should be granted against Respondent and in favor of Movant for the use and benefit of Movant s attorneys; or, in the alternative, Movant requests that reasonable attorneys fees, expenses, and costs through trial and appeal be taxed under Texas Rule of Civil Procedure 143 as costs and be ordered paid directly to Law Firm, P.C., 123 Legal Avenue, Ste 18, Fort Worth, Texas 76092, who may enforce the order for fees in its own name. Movant requests postjudgment interest as allowed by law. G. Prayer 18. Movant prays that the Court grant this Emergency Motion for Temporary Restraining Order, Electronic Protection Order, and Motion to Gain Access to iphone and ipad, and grant the relief requested herein. 19. Movant prays that the Court immediately grant a temporary restraining order restraining Respondent, in conformity with the allegations of this motion, from the acts set forth above. 20. Movant prays that the Court make such findings as it deems necessary and appropriate for such other relief, both at law and in equity, to which she may be justly entitled. 21. Movant prays for attorneys fees, expenses, and costs as requested above. Respectfully submitted, LAW FIRM, P.C. 123 Legal Ave., Suite 18 Fort Worth, TX 76092-7634 Tel: 817-333-2710 Fax: 817-333-2637 EMERGENCY MOTION FOR TRO, ELECTRONIC PO, AND MOTION TO GAIN ACCESS TO IPAD AND IPHONE PAGE 5 19

LAWYER State Bar No.: 00000000 Attorney for Petitioner WIFE EMERGENCY MOTION FOR TRO, ELECTRONIC PO, AND MOTION TO GAIN ACCESS TO IPAD AND IPHONE PAGE 6 20

CAUSE NO. 123-43678-11 IN THE MATTER OF IN THE DISTRICT COURT THE MARRIAGE OF WIFE AND HUSBAND 123 rd JUDICIAL DISTRICT AND IN THE INTEREST OF MINOR CHILD, A CHILD TARRANT COUNTY, TEXAS RESPONDENT S RESPONSES AND OBJECTIONS TO PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION OF DOCUMENTS To: WIFE, Petitioner, by and through her attorney of record, OPPOSING LAWYER, 123 Legal Street, Fort Worth, Texas 76092, in accordance with the TEXAS RULES OF CIVIL PROCEDURE. Pursuant to Rule 196 of the TEXAS RULES OF CIVIL PROCEDURE, HUSBAND, Respondent, serves the following Respondent s Responses and Objections to Petitioner s First Request for Production and Inspection of Documents to Petitioner as follows: Conditions to Response 1. Respondent s responses are based on his present knowledge after a reasonable investigation and on his interpretation and construction of the request. 2. Respondent reserves the right to redact any portions of otherwise responsive and nonprivileged documents that contain irrelevant, nonresponsive, or privileged information. 3. Respondent will supplement responses when, if, and as required by the TEXAS RULES OF CIVIL PROCEDURE. Objections and Responses to Request for Production Page 1 21

4. Certain categories of the Request are duplicative and/or seek documents that are responsive to multiple categories of the Request, therefore, documents produced in response to one category of the Request may also be responsive to other categories of the Request. 5. Any response that Respondent will produce certain documents is not a representation that such documents exist but, rather, an undertaking to produce them if and to the extent that they exist and are in Respondent s possession, custody, or control and are not otherwise objectionable or privileged. Respectfully submitted, LAW FIRM, P.C. 456 Law Street Fort Worth, TX 76092 Tel: (817) 481-1234 Fax: (817) 481-5678 By: LAWYER Attorney for Respondent Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the TEXAS RULES OF CIVIL PROCEDURE on, 20. Attorney for Respondent Objections and Responses to Request for Production Page 2 22

KEY TO OBJECTIONS The following Key to Objections is in no way intended as a blanket objection list to be applicable to every request, but only as a reference and incorporation of each full objection specifically listed in a response by alphanumeric reference. A. Identity of Consulting Experts Objection is made to the production request to the extent that is seeks the identity, mental impressions, opinions, and/or documents or tangible things containing such information of consulting experts either informally consulted by or specially retained in anticipation of litigation or preparation for trial which were not reviewed by a testifying expert witness, all of which information is protected from discovery pursuant to the TEXAS RULES OF CIVIL PROCEDURE Rule 192.3(e). B. Unduly Burdensome and/or Unreasonable Expense Objection is made to the production request to the extent that it is (1) unduly burdensome, (2) involves unnecessary and/or unreasonable expense and/or hardship, and (3) made for the purpose of harassment or annoyance. Further objection is made to the production request because it seeks information the probative value of which is outweighed by the time, expense, and burden of discovery is allowed. 192.4; In re Alford, 997 S.W.2d 173 (Tex. 1999). C. Overly Broad Request Objection is made to the production request to the extent that it is overly broad and seeks discovery of matters, things, or information that are not relevant or material to the subject matter in the pending action, and to the extent that the discovery sought is not reasonably calculated to lead to the discovery of admissible evidence. Lunsmann v. Spector, 761 S.W.2d 112 (Tex. App. San Antonio 1988, no writ); Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex. 1995). D. Information not within Knowledge, Possession, Custody or Control Objection is made to the production request to the extent that it requires disclosure of information which the answering party does not know or possess, which is not in the answering party s possession, custody, or control and/or which the answering party has not been able to obtain after due diligence pursuant to the TEXAS RULES OF CIVIL PROCEDURE Rule 193.1. Objections and Responses to Request for Production Page 3 23

E. Request is too Global/General Objection is made to the production request because it is too global, general, and does not adequately describe which information is requested or sought with reasonable particularity. F. Request is too Vague Objection is made to the production request because it is so vague that the responding party is, in good faith, unable to ascertain what information is requested. G. Information is Equally in the Possession of Requesting Party and is Duplicative Objection is made to the production request to the extent it seeks information, which is equally in the possession, custody or control of the requesting party and is unnecessarily burdensome and duplicative pursuant to TEXAS RULES OF CIVIL PROCEDURE Rule 192.4; Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558 (Tex. 1992). H. Information is Confidential Objection is made to the production request to the extent it seeks information, which is confidential, proprietary, or a trade secret. I. Unduly Burdensome and More Appropriate Means Exists to Obtain Information Objection is made to this Request because and to the extent that compliance therewith and/or, an answer thereto, would be unduly burdensome and/or unnecessarily expensive, and the information sought therein, to the extent discoverable, is obtainable through more appropriate and less burdensome means. J. Request Seeks to Limit Evidence at Trial Objection is made to this production request to the extent that the requesting party seeks by this request to limit evidence, which may be introduced and presented at trial. The answering party objects to being required to provide information with regard to all material facts or to respond in detail because to do so would be at its peril inadvertently omitting a fact or detail. To the extent the matter(s) inquired about are discoverable, a more appropriate and less burdensome form of discovery is available. Petitioner s Answers and Objections to Respondent s Written Interrogatories Page 4 24

K. Specify the Knowledge of a Person Objection is made to this production request to the extent that the requesting party is asking the responding party to provide information related to the knowledge of a person with knowledge of any relevant facts, which request is improper. Housing Authority of El Paso v. Rodriguez-Yepez, 843 S.W.2d 475 (Tex. 1992). L. Use of the Terms Any and All Objection is made to the use of the terms, each and every, any and all, all, and/or any in the Request for Production of Documents on the grounds that such terms are global, overly broad, unduly burdensome, oppressive and harassing. M. Request Requires Responding Party to Marshal all Proof Objection is made to this Request to the extent that it seeks information which is outside the scope of discovery because it improperly requires Respondent to disclose or marshal all of the available proof that he intends to offer at trial. In re TIG Ins. Co., 172 S.W.3d 160 (Tex. App. Beaumont 2005). N. Request Requires the Creation of a Document Not in Existence Objection is made to this request because the request would require the responding party to create a document not in existence. A proper request for production only requires a party to produce designated and tangible documents already in existence. See McKinney v. Nat l Union Fire Ins. Co., 772 S.W.2d 72 (Tex. 1989); Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989). O. Request Requires the Creation of a List Objection is made to this request because the request calls for a list, which does not currently exist, in tangible form. See McKinney v. Nat l Union Fire Ins. Co., 772 S.W.2d 72 (Tex. 1989); Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989). P. Voluminous Production Respondent would show the Court that in producing the documents requested, that the same would be voluminous and reproduction extremely costly. Therefore, Respondent specifically objects to surrendering the originals of the records to the location of Respondent s counsels office. To the extent that such documents exist, such documents will be made available in the office of Respondent s attorney at 181 Grand Avenue, Suite 225, Southlake, Texas 76092. Petitioner and Petitioner s Answers and Objections to Respondent s Written Interrogatories Page 5 25

her attorney may inspect such documents and shall pay for any copy costs during normal business hours at a mutually agreed upon time and date. TEX. R. CIV. P. 194.4. Q. Not a Permissible Form of Discovery Objection to this request is made because it inquires as to a type of discovery not permitted by the rules of discovery. See e.g. TEX. R. CIV. P. 195.1; TEX. R. CIV. P. 192.3 and 195.1. R. Work Product (1) Objection is made to this request to the extent it inquires as to communications passing between agents or representatives or the employees/employers of Petitioner or communications between Petitioner and its agents, representatives, or employees which are made subsequent to the occurrence or transaction upon which the suit is based and made in anticipation of the prosecution or defense of claims made a part of the pending litigation, all of which communications are protected from discovery. TEX. R. CIV. P. 192.5(A); Bearden v. Boone, 693 S.W.2d 25, 28 (Tex. App. Amarillo 1985) (orig. proceeding). S. Work Product (2) Objection is made to this request to the extent it seeks disclosure invasive of the mental impressions, conclusions, opinions or legal theories of Petitioner s attorney or other representatives of Petitioner working solely to assist trial preparation, which are protected from discovery by the work product privilege. TEX. R. CIV. P. 192.5(b)(1); West v. Solito, 563 S.W.2d 240, 244 (TEX. 1978); TEX. R. EVID. 503. T. Attorney-Client Communication Objection is made to this request to the extent this request inquires as to communications between attorney and client [or between or among client of client s representative and his lawyer s representative or to a lawyer or representative of lawyer representing another party to a pending action and concerning a matter of common interest] made in confidence for the purpose of facilitating the rendition of professional legal services, all of which communications are protected from discovery by the attorney-client privilege pursuant to TEX. R. EVID. 503. Petitioner s Answers and Objections to Respondent s Written Interrogatories Page 6 26

U. Investigative Privilege Objection is made to this request to the extent that the information sought involves investigation by Petitioner or its agents or employees performed after the transaction or occurrence in question and in anticipation of claims made a part of the pending lawsuit and is privilege. TEX. R. CIV. P. 192.5. V. Irrelevant Information Objection is made to this request to the extent it seeks information which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. TEX. R. CIV. P. 192.3(a); TEX. R. EVID. 501. W. Request is Outside the Discovery Period Objection is made to this Request because it seeks the discovery of information outside the discovery period provided under 190.2, (for level 1) or 190.3(for level 2), 197.1 and 197.2 of the TEXAS RULES OF CIVIL PROCEDURE. X. Not Reasonably Available and/or Overly Burdensome Objection is made to this request to the extent that at the time the response is made, it is not reasonably available to Petitioner or Petitioner s attorney. Petitioner objects to this request because it seeks information the probative value of which is outweighed by the time and expense burden on Petitioner if discovery is allowed. TEX. R. CIV. P. 192.4; TEX. R. CIV. P. 193.1; TEX. R. EVID. 501. Y. Premature Request Objection is made to this request to the extent it asks for information not yet available because said request is premature. Loftin v. Martin, 776 S.W.2d 145, 147 (Tex. 1989). Petitioner s Answers and Objections to Respondent s Written Interrogatories Page 7 27

REQUEST #1 RESPONSES All documents, including invoices and billing statements, evidencing the contractual relationship with attorneys, experts, and/or investigators in connection with this case excluding information that falls within the attorney-client work product or attorney-client privilege. OBJECTION: Responding Party specifically asserts Objection A as set forth in the Key to Objections hereinabove, and without waiving said objection or Responding Party s right to present related evidence at trial, Responding Party answers in part as follows: See attached documents marked as Response to #1. Responding Party further incorporates in full as if fully set forth at length herein verbatim any and all information requested by this discovery which information has been provided in response to any other discovery responses provided by Respondent in this cause, including without limitation, Responses to Disclosure, Production, Admissions, Inventory and Appraisements, and Depositions made formally or informally in any manner, including being placed in evidence at hearing of this matter, prior or subsequent to the filing of this response or any amended or supplemental response hereafter. Petitioner s Answers and Objections to Respondent s Written Interrogatories Page 8 28

CAUSE NO. 123-436789-11 IN THE MATTER OF IN THE DISTRICT COURT THE MARRIAGE OF WIFE AND HUSBAND 123 rd JUDICIAL DISTRICT AND IN THE INTEREST OF MINOR CHILD, A CHILD TARRANT COUNTY, TEXAS PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT TO:, Respondent, by and through his attorney of record,, Texas, in accordance with the TEXAS RULES OF CIVIL PROCEDURE. Pursuant to Rule 196 of the TEXAS RULES OF CIVIL PROCEDURE, WIFE hereby requests and demands that opposing party, HUSBAND, produce and deliver ALL of the following requested documents for inspection and copying at the offices of KOONS, FULLER, VANDEN EYKEL & ROBERTSON, PC, 181 Grand Avenue, Suite 225, Southlake, Texas 76092-7634, on or before thirty (30) days after service upon you in accordance with the TEXAS RULES OF CIVIL PROCEDURE. This Request is intended to cover all documents in the possession of Opposing Party, and/or subject to your care, custody, and control, whether or not they are located in Opposing Party's house, office, Opposing Party's attorney's and/or accountant's office, and/or any other places maintained and/or controlled by Opposing Party and /or in which Opposing Party has the equal or superior right to compel the production from a third person. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 1 29

I. Amendment or Supplementation of Response Pursuant to the TEXAS RULES OF CIVIL PROCEDURE, all discovery requests as set out below shall be amended and/or supplemented reasonably promptly after you discover the necessity to amend or supplement your response. If you learn that your response to this request was incomplete or incorrect when made or that, although it was complete and correct when made, it is no longer complete and correct, you must amend or supplement the response 1. to the extent that the request seeks the identification of persons with knowledge of relevant facts, trial witnesses, or expert witnesses and 2. to the extent that the request seeks other information, unless the additional or corrective information has been made known to the other parties in writing, on the record at a deposition, or through other discovery responses. II. Definitions A. The term "person" includes and is intended to mean any natural person or the representative of any company, limited liability company, firm, nonpublicly traded corporation, association, trust, business trust, partnership, limited partnership, family limited partnership, limited liability partnership, joint venture, proprietorship, or any other form of business entity. B. The term "item, document" or "documents" means any kind of written or graphic matter, as defined in and encompassed by Rule 192 of the TEXAS RULES OF CIVIL PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 2 30

PROCEDURE, however produced or reproduced, of any kind or description, whether sent or received or neither, including originals, copies, and drafts, and both sides thereof, and including, but not limited to, papers, books, letters, photographs, objects, tangible things, correspondence, telegrams, cables, telex messages, memoranda, notes, notations, work papers, transcripts (including trial and deposition transcripts), pleadings, minutes, reports and recordings of telephone or other conversations or of interviews or of conferences or of other meeting, affidavits, statements, summaries, opinions, reports, studies, analyses, evaluations, contracts, agreements, journals, statistical records, desk calendars, appointment books, day timers, day planners, diaries, lists, tabulations, sound recordings, computer printouts, e-mail, data processing input and output, microfilms, computer discs or other memory elements, and all other records kept by electronic, photographic, or mechanical means, and things similar to any of the foregoing, however, denominated by you. Item, document or documents also pertains to any data or electronic media including, but not limited to electronically stored data on magnetic or optical storage media (such as hard drives, back up tapes, CD- ROMs, JAZ and Zip drives, or floppy drives) as an active file or files (readily readable by one or more computer applications or forensics software); any deleted but recoverable electronic files on said media; any electronic file fragments (files that have been deleted and partially overwritten with new data); and slack (data fragments stored randomly from random access memory on a hard drive during the normal operation of a computer [RAM slack] or residual data left on the hard drive after new data has overwritten some but not all of previously stored data). It shall include any data or electronic media stored in any computer system. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 3 31

Computer or Computer system shall include, but is not limited to network servers, desktops, laptops, notebook computers, employees home computers, mainframes, the PDAs of [party name] and its employees (personal digital assistants, such as PalmPilot, Cassiopeia, HP Jornada and other such handheld computing devices), iphones, digital cell phones and pagers. Request is specifically made that said data be produced on a CD-Rom disc or DVD in a version readable under Windows 2000 or higher, Windows XP or higher, Windows Notepad or Windows Wordpad. Request is made that you specify the said program under which the data may be accessed. In the event that the data cannot be produced in a form readable under one of the said programs specified above, request is made that said data be printed and be produced in a printed form. C. The term "Opposing Party" means HUSBAND. D. The term "Requesting party" means WIFE. E. The term "Entity or Other Entities" includes and is intended to mean, but is not limited to, any and all corporations, partnerships, professional associations, professional corporations, joint ventures, associations, trusts, limited liability entities, companies, family limited partnerships, and any organization or entity which Opposing Party owns and/or has an interest. F. Pronouns. The pronouns "he" and "his" refer to both males and females. "You", "yours," and like terms refer to individuals as well as the "other entities" as defined hereinabove, as well as any testifying expert witnesses retained by your or retained on your behalf relating to this litigation and any consulting experts whose work product has been PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 4 32

reviewed by, relates to or forms the basis, either in whole or in part, of the mental impressions and opinions of any testifying experts. G. The term "relating to" or relates to means, when in connection with this Request, in whole or in part constitutes, contains, concerns, embodies, relates, analyzes, identifies, states, refers to, deals with, refers to, reflects on, and/or in any manner identifies or describes the subject matter of the said Request. H. The term fringe benefit, unless otherwise specified, means any benefit from an employer apart from salary, including but not limited to payment of personal expenses; payment of housing expenses; vacation pay; payment of medical, hospitalization, or dental insurance, life insurance, annuities, and disability insurance policies; payment of automobile expenses (including note payment, gasoline, repairs, maintenance, insurance, and mileage compensation); payment of travel allowances; deferred compensation plans, 401(k) contributions, stock options, or retirement or pension benefits; country club or other memberships; use of company airplanes, homes, boats, or cars; payment of business professional dues; interest-free or low-interest loans; payment of legal fees; accounting or bookkeeping services; and payment for items used by you personally. III. Relevant Time Period For purposes of this Request for Production of Documents, the relevant time period is January 1, 2006, through the date of your response to these Requests for Production of Documents unless otherwise stated herein. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 5 33

IV. Missing Documents If any of the documents requested were, but are no longer, in Opposing Party's possession or subject to Opposing Party's control, then state whether such document is (a) missing; (b) has been destroyed; (c) has been transferred voluntarily or involuntarily to others; (d) otherwise disposed of, and in each instance, state the circumstances surrounding the authorization for such disposition thereof and state the date or approximate date thereof. V. Documents to Be Produced YOU ARE REQUESTED TO ORGANIZE AND LABEL ALL OF SAID DOCUMENTS AS HEREINAFTER REQUESTED TO CORRESPOND WITH THE CATEGORIES AND SUB-PARTS OF THE LISTED ITEMS TO BE PRODUCED. VI. Production of Documents Self Authenticating Be advised that in accordance with Rule 193.7 of the TEXAS RULES OF CIVIL PROCEDURE, Requesting Party hereby puts Opposing Party on actual notice that all documents produced herein by Opposing Party will be used in evidence in the above referenced case and will be considered self-authenticated. Therefore, any objection to authenticity Opposing Party may have to any of the documents produced herein should be filed no later than ten (10) days after the date said documents are commanded herein to be produced. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 6 34

Respectfully submitted, LAW FIRM Address Tel: (817) 333-2710 Fax: (817) 333-2637 By: LAWYER State Bar No. 123456 Attorney for Petitioner PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 7 35

REQUEST #1 REQUESTED DOCUMENTS All documents, including invoices and billing statements, evidencing the contractual relationship with attorneys, experts, and/or investigators in connection with this case excluding information that falls within the attorney-client work product or attorneyclient privilege. REQUEST #2 Any and all documents, correspondence, records, or other writings pertaining to any evidence which reasonably relates to any property claimed by you as separate property, including but not limited to claims arising out of the following circumstances: a. Prior to your marriage; b. During your marriage by gift, descent or devise; or c. During your marriage by the expenditure of your separate funds. REQUEST #3 All letters and correspondence, including electronic writings (for example, including, but not limited to, e-mail, text messages, instant messages, myspace messages or facebook messages), between WIFE and any of your agents or employees, whether that person or persons is employed directly by you or by an entity in which you own or claim to have owned or claimed an interest that are in your possession or in the possession of any of your agents or employees. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 8 36

REQUEST #4 For the relevant time period to the present, all documents, correspondence, electronic writings, or other written memoranda, printouts, and screen shots pertaining to any social networking site where you have or have had an account or membership, including but not limited to twitter.com, myspace.com, match.com, eharmony.com, perfectmatch.com, Yahoo Personals, true.com and facebook.com. REQUEST #5 Any and all documents regarding any lie detector test you have been the subject of in the last three years, including but not limited to, test results, raw data and notes. REQUEST #6 All photographs, moving pictures, video tapes, digital video discs, audio tapes, cd's and any stenographic and/or mechanical recordings and any transcription thereof which are in any way or manner connected with, incident to, and/or related to the claim or defense of Opposing Party in the pending action and the claim or defense of Requesting Party in the pending action. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 9 37

REQUEST #7 Any and all books, records, documents, diaries, journals, calendars, appointment books, day runners, day planners, day timers, photographs, and/or any other tangible and physical evidence which are incident to and relate in any manner to any of YOUR claims and/or defenses as set out in YOUR pleadings filed herein. REQUEST #8 Any and all documents, statements, party statements, witness statements, and reports of any type or nature which you intend to use as evidence or offer as evidence at the trial of this case and/or which you and/or your attorney have obtained for use in any way in the trial of this case, whether or not such evidence will be offered as direct evidence, cross examination evidence, impeachment evidence, and/or rebuttal evidence. REQUEST #9 True and correct complete copies of EACH federal income tax return filed by you or your business for the past five (5) years, (joint or individual, corporate, limited liability entity, partnership, trust, and/or estate), in which Opposing Party owns and/or has or had an interest in, including 11 schedules filed therewith, and all W-2s, W-4's, 1098's, 1099's, and K-l's associated therewith. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 10 38

REQUEST #10 Any and all financial statements, balance sheets, income statements of changes in financial position, tax ID numbers, and statements of stockholder s equity covering the personal and/or business finances of you and/or of any entity in which you have an interest of five percent (5%) or greater (regardless of whether it has been submitted to any bank, savings and loan, or other financial institution for any purpose) for the past five (5) years. REQUEST #11 Any and all check stubs, check registers and ledgers, deposit slips, wire transfers, canceled checks, and bank statements for the relevant time period to present date, for EACH checking account(s), savings account(s), money market account(s), mutual fund accounts), stock and/or bond account, commodity account, certificate of deposit, IRA and any other type of financial account, domestic and/or foreign, which stands in your name and/or your name and any third person, and/or in which you own and/or have an interest in the asset(s) on deposit. REQUEST #12 Any and all company documents relating to your business, including any articles of incorporation, bylaws, amendments, existing buy-sell agreements, stock options, shareholder agreements, restrictions on the transfer of stock, rights of first refusal, and franchise/operating agreements for the time period of January 1, 2006 to present date. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 11 39

REQUEST #13 The latest interim statements of your business and the interim statements for comparable period(s) of the previous year. REQUEST #14 Any and all existing business documents relating to the financial status of your business from January 1, 2006 to present date, including, but not limited to, all of the following: a. Property, plant, and equipment lists; b. Depreciation schedules; c. Aged accounts receivable summaries; d. Aged accounts payable summaries; e. Lists of marketable securities/prepaid expenses; f. Inventory summaries; g. Inventory accounting policies; h. Leases relating to business facilities or equipment; i. Contracts including employment agreements, covenants not to compete, supplier agreements, customer agreements, royalty agreements, equipment lease or rental contracts, loan agreements, labor contracts, and/or employee benefits plans; j. Lists of stockholders; k. Lists of the number of shares owned by each stockholder; l. Schedules of insurance in force; m. Budgets or projections; n. Lists of subsidiaries and/or financial interests in other companies; o. Subcontractors, subcontracts, and any bonuses paid to subcontractors; p. Key personnel compensation schedules, including benefits, personal expenses, and bonuses; and q. Tickets for any sporting events held by your business. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 12 40

REQUEST #15 Any and all existing documents relating to the internal procedures of your business from January 1, 2006 to present date, including, but not limited to, all of the following: a. Summaries of your business s history, including, but not limited to, changes in ownership, years in business, and descriptions of your business; b. Marketing literature (catalogs, brochures, advertisements); c. Lists of location where your business operates; d. Recent appraisals; e. Lists of competitors; f. Resumes of key personnel; g. Personnel profiles, including the number of employees employed by your business; h. Lists of employees that work in each department of your business (EX: production, sales, personnel and accounting, etc.); i. Lists of trade associations to which the company belongs; j. Market forecasts; k. Lists of customer relationships; l. Lists of supplier relationships; and m. Filings of correspondence with regulatory agencies. REQUEST #16 The most recent property tax assessments and appraisals that have been performed on your business. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 13 41

REQUEST #17 Any and all bank card(s) and charge account monthly billing statements of any nature AND all receipts for all bank cards, credit cards, and charge cards which stand in the name of Opposing Party and/or of which Opposing Party has or had the right to use (if in another name or a company's name) for the time period of January 1, 2006 to present date, including but not limited to: Visa, Mastercard, American Express, Diner's Club, Carte Blanche, Bank Americard, Discover Card, PayPal AND ANY OTHER bank card and/or credit card(s) used by Opposing Party, whether for personal use and/or business use. REQUEST #18 Any and all documents relating to any and all debts, liabilities, and obligations owed by you (including your spouse) and/or on your behalf from the inception date of the debt, liability, and obligation through the present date, including, but not limited to, all of the following: a. Bills and statements received from creditors; b. Promissory notes, I.O.U.'s, markers, judgments, and all other written records and documents of any liabilities; c. Documents relating to security given by you for debts, such as deeds of trust, liens, mortgages, or security agreements; d. Guarantees and/or indemnities signed by you; e. Records of balances due on debts incurred; and f. Documents relating to any other contractual obligations made by you. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 14 42

REQUEST #19 Any and all policies and/or certificates, whether in your name and/or your name and any third person, relating to ANY type(s) of annuities and/or insurance of any nature including, but not limited to, life, health, accident, casualty, auto, disability, and homeowners, including but not limited to: a. Any and all documents dealing with any change in any type of insurance policy(ies) from the inception date of the policy through the present date, including all of the following: i. change of beneficiary; ii. assignments; iii. loans on policy and the dates thereof; iv. cancellation or surrender v. written disclaimer or release of interest in an insurance policy by you; and vi. amount of cash value b. Any and all documents or other records relating to proceeds received from any insurance policies during the relevant time period. REQUEST #20 Any and all receipts and/or certificates for all precious metals (gold, silver, platinum, etc.) stock, commercial paper, certificates of deposit, bonds, commodities, and mutual funds registered in your name and/or your name and any third person and/or which you own and/or have an interest in. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 15 43

REQUEST #21 If you and/or you and any third person have an account with a bank, a mutual fund, stock and/or bond broker, domestic and/or foreign then produce any and all bank statements, confirmation slips, stock advice slips, and sale slips from the broker or brokerage house for EACH such accounts) for the past five (5) years. REQUEST #22 Any and all deeds, deeds of trust, vendor's liens, contracts of sale, contracts for deed, and/or any other documents of title or indicia of title for any and all interests) in real property including mineral interest owned by you and/or you and any third person. REQUEST #23 Any and all purchase slips, inventories, receipts, (cash or otherwise), appraisals, insurance policies, and any other documents relating to your ownership and valuation of all personal property of value in excess of $500.00 U.S. from the inception date of acquiring said property through the present date including but not limited to: a. Jewelry; b. Crystal and china; c. Sterling Silver silverware, serving pieces, dishes, etc.; d. Valuable items of furniture, furnishings, and personalty, (such as highfidelity stereo equipment, oriental rugs, computers, appliances, electronics equipment, photo equipment, guns, etc.); e. Antiques; f. Works of art; and g. Collections of any nature including but not limited to art, cars, coins, stamps, guns, baseball cards, china, silver, porcelains, and/or any other collectibles and/or memorabilia. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 16 44

h. Precious metals (gold, silver, platinum, etc.), precious and semiprecious stones (diamonds, ruby's, emeralds, sapphires, etc.) REQUEST #24 Any documents relating to the contents of any place of safekeeping secured in your name and/or your name and any third person including all: a. Bank safe-deposit boxes; b. Savings and Loan safe-deposit boxes; c. Office, home, or hotel safes or vaults; and d. Storage facilities. REQUEST #25 If you are a distributee, devisee, legatee, trustee, settlor and/or beneficiary of a trust (domestic and/or foreign) and/or of an estate (or estate in probate or otherwise), produce (from the attorney and/or executor of the estate or estates) ALL of the following: a. Copy of the Will and/or trust instrument and all codicils and amendments thereto; b. Copy of the Inventory and Appraisement (whether filed or not); and c. Letter or other documents stating when distribution may be expected and identify the property and/or the amount of money, stock, etc. that will be and/or has been received by you. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 17 45

REQUEST #26 Any and all promissory notes, debentures, judgments, and all other documents evidencing debt owed to you and/or your spouse during the relevant time period. REQUEST #27 Any and all deeds of trust, liens, U.C.C. financing statements, mortgages, conditional sales contracts, and all other documents relating to security for debts owed by you and/or your spouse during the relevant time period. REQUEST #28 Any and all certificates of title for any and all automobiles, mobile homes, boats, personal water craft (including jet skis), trailers, motorcycles, airplanes, helicopter, tractors, farm equipment, buses, trucks, motor homes, and any other vehicle or craft owned by you and/or by you and any third person and/or your business. REQUEST #29 Any and all agreements for any and all mineral interests and mineral rights you own and/or have an interest in. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 18 46

REQUEST #30 Any and all licensing agreements and/or royalty agreements held or owned by you as a licensee. REQUEST #31 Any and all documents relating to copyrights, patents and/or trademarks owned by you and/or you and third person and/or your business. REQUEST #32 Any and all documents relating to any surveillance used in connection with this case, including but not limited to contracts with private investigators, log sheets for government property. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 19 47

REQUEST #32 Please produce copies of any and all written policies authorized by you and/or between you and a third person and/or by you for your business for the retention of documents, for the time period of to inclusive. REQUEST #32 Please produce copies of any and all written policies by you and/or between you and a third person and/or by you for your business for the destruction of documents, for the time period of to inclusive. REQUEST #32 Produce any and all company organizational and policy information in its entirety, including but not limited to organizational charts, corporate policy and procedure manuals, policy memoranda, system schematic, network topology, system restart procedures, e-mail retention policies, Year 2000 Plan, Disaster Recovery Plan, and other related items. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 20 48

REQUEST #32 Produce any and all voice messaging records including but not limited to caller message recordings, digital voice recordings, interactive voice response unit (IVR/VRV) recordings, unified messaging files, and computer-based voice mail files to or from [specified parties] for the period to. REQUEST #32 Produce any and all information related to newsgroups or chat groups, including but not limited to names and passwords for each and every service, newsgroup messages, text files and programs used to access messages. REQUEST #33 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 1 of Petitioner's First Set of Written Interrogatories to Respondent. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 21 49

REQUEST #34 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 2 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #35 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 3 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #36 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 4 of Petitioner's First Set of Written Interrogatories to Respondent. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 22 50

REQUEST #37 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 5 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #38 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 6 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #39 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 7 of Petitioner's First Set of Written Interrogatories to Respondent. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 23 51

REQUEST #40 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 8 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #41 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 9 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #42 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 10 of Petitioner's First Set of Written Interrogatories to Respondent. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 24 52

REQUEST #43 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 11 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #44 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 12 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #45 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 13 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #46 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 14 of Petitioner's First Set of Written Interrogatories to Respondent. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 25 53

REQUEST #47 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 15 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #48 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 16 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #49 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 17 of Petitioner's First Set of Written Interrogatories to Respondent. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 26 54

REQUEST #50 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 18 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #51 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 19 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #52 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 20 of Petitioner's First Set of Written Interrogatories to Respondent. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 27 55

REQUEST #53 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 21 of Petitioners First Set of Written Interrogatories to Respondent. REQUEST #54 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 22 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #55 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 23 of Petitioner's First Set of Written Interrogatories to Respondent. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 28 56

REQUEST #56 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 24 of Petitioner's First Set of Written Interrogatories to Respondent. REQUEST #57 Any and all documents which deal with, relate to, and/or contain information as described in Interrogatory No. 25 of Petitioner s First Set of Written Interrogatories to Respondent. PETITIONER S FIRST REQUEST FOR PRODUCTION AND INSPECTION TO RESPONDENT PAGE 29 57

CAUSE NO. 123-43678-11 IN THE MATTER OF IN THE DISTRICT COURT THE MARRIAGE OF WIFE AND HUSBAND 123 rd JUDICIAL DISTRICT AND IN THE INTEREST OF MINOR CHILD, A CHILD TARRANT COUNTY, TEXAS RESPONDENT S ANSWERS AND OBJECTIONS TO RESPONDENT'S WRITTEN INTERROGATORIES TO PETITIONER TO: WIFE, Petitioner, by and through her attorney of record, OPPOSING LAWYER, 123 Legal Street, Fort Worth, Texas 76092, in accordance with the TEXAS RULES OF CIVIL PROCEDURE. Pursuant to the TEXAS RULES OF CIVIL PROCEDURE, Respondent, HUSBAND, files his Answers and Objections to Petitioner s Written Interrogatories to Respondent propounded to Respondent by Petitioner, and swears that they are true and correct to the best of her knowledge, subject to the following qualifications: 1. Answers to interrogatories inquiring about persons with knowledge of relevant facts, trial witnesses, and legal contentions are not made under oath. HUSBAND 59

STATE OF TEXAS COUNTY OF TARRANT SUBSCRIBED AND SWORN TO BEFORE ME this the 16 TH day of May, 2011. Notary Public, State of Texas Respectfully submitted, LAW FIRM, P.C. 456 Law Street Fort Worth, TX 76092 Tel: (817) 481-1234 Fax: (817) 481-5678 LAWYER Attorney for Respondent CERTIFICATE OF SERVICE I certify that a true copy of Respondent s Answers and Objections to Petitioner s Written Interrogatories to Respondent was forwarded in accordance with the TEXAS RULES OF CIVIL PROCEDURE on the day of, 2011 to each attorney of record or party in accordance with the TEXAS RULES OF CIVIL PROCEDURE. Attorney for Respondent 60

I. Conditions to Response 1. Respondent s responses are based upon his present knowledge after a reasonable investigation and upon his interpretation and construction of the request. 2. Petitioner will supplement responses when, if and as required by the TEXAS RULES OF CIVIL PROCEDURE. II. Key to Objections By the below Key to Objections, the responding party in no way waives any objections to this discovery legally available to responding party but not listed herein. The following Key to Objections is in no way intended as a blanket objection list to be applicable to every request, but only as a reference and incorporation of each full objection specifically listed in a response by alphanumeric reference. A. Identity of Consulting Experts Objection is made to the production request to the extent that is seeks the identity, mental impressions, opinions, and/or documents or tangible things containing such information of consulting experts either informally consulted by or specially retained in anticipation of litigation or preparation for trial which were not reviewed by a testifying expert witness, all of which information is protected from discovery pursuant to the TEXAS RULES OF CIVIL PROCEDURE Rule 192.3(e). B. Unduly Burdensome and/or Unreasonable Expense Objection is made to the production request to the extent that it is (1) unduly burdensome, (2) involves unnecessary and/or unreasonable expense and/or hardship, and (3) made for the purpose of harassment or annoyance. Further objection is made to the production request because it seeks information the probative value of which is outweighed by the time, expense, and burden of discovery is allowed. 192.4; In re Alford, 997 S.W.2d 173 (Tex. 1999). C. Overly Broad Request 61

Objection is made to the production request to the extent that it is overly broad and seeks discovery of matters, things, or information that are not relevant or material to the subject matter in the pending action, and to the extent that the discovery sought is not reasonably calculated to lead to the discovery of admissible evidence. Lunsmann v. Spector, 761 S.W.2d 112 (Tex. App. San Antonio 1988, no writ); Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex. 1995). D. Information not within Knowledge, Possession, Custody or Control Objection is made to the production request to the extent that it requires disclosure of information which the answering party does not know or possess, which is not in the answering party s possession, custody, or control and/or which the answering party has not been able to obtain after due diligence pursuant to the TEXAS RULES OF CIVIL PROCEDURE Rule 193.1. E. Request is too Global/General Objection is made to this Request to the extent it is too global, general, and does not adequately describe which information is requested or sought with reasonable particularity. F. Request is too Vague Objection is made to the production request because it is so vague that the responding party is, in good faith, unable to ascertain what information is requested. G. Information is Equally in the Possession of Requesting Party and is Duplicative Objection is made to the production request to the extent it seeks information, which is equally in the possession, custody or control of the requesting party and is unnecessarily burdensome and duplicative pursuant to TEXAS RULES OF CIVIL PROCEDURE Rule 192.4; Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558 (Tex. 1992). H. Information is Confidential Objection is made to this Request to the extent it seeks information which is confidential, proprietary, or a trade secret. I. Unduly Burdensome and More Appropriate Means Exists to Obtain Information 62

Objection is made to this Request because and to the extent that compliance therewith and/or, an answer thereto, would be unduly burdensome and/or unnecessarily expensive, and the information sought therein, to the extent discoverable, is obtainable through more appropriate and less burdensome means. J. Requests Seeks to Limit Evidence at Trial Objection is made to this Request to the extent that the requesting party seeks by this Interrogatory to limit evidence which may be introduced and presented at trial. The answering party objects to being required to state all material facts or to respond in detail because to do so would be at its peril inadvertently omitting a fact or detail. To the extent that the matter(s) inquired about are discoverable, a more appropriate and less burdensome form of discovery is available. K. Specify the Knowledge of a Person Objection is made to this Request to the extent that the requesting party is asking the responding party to specify the knowledge of a person with knowledge of any relevant facts, which request is an improper interrogatory. Housing Authority of El Paso v. Rodriguez-Yepez, 843 S.W.2wd 475 (Tex. 1992). L. Use of the Terms Any and All Objection is made to the use of the terms, each and every, any and all, all, and/or any in the request on the grounds that such terms are global, overly broad, unduly burdensome, oppressive and harassing. M. Request Requires Responding Party to Marshal all Proof Objection is made to this Request to the extent that it seeks information which is outside the scope of discovery because it improperly requires Respondent to disclose or marshal all of the available proof that he intends to offer at trial. In re TIG Ins. Co., 172 S.W.3d 160 (Tex. App. Beaumont 2005). N. Interrogatories not Proper Procedure to Procure Documents Objection is made to this Request to the extent that it request or requires responding party to produce a document or tangible item, and Interrogatories are not the proper procedure to procure documents. See TEX. R. CIV. P. 167, Limas v. Delgado, 770 S.W.2d 952 (Tex.App. El Paso, 1989, no writ). See also TEX. R. CIV. P. 167, 168. 63

O. Knowledge or Opinions of Witness Objection is made this request as not being within the ambit of the TEXAS RULES OF CIVIL PROCEDURE. Petitioner is required to provide only the name, address and telephone number of persons with knowledge of relevant facts, as well as a brief statement of each identified person s connections to the case. TEX. R. CIV. P. 192.3(c). P. Voluminous Production Respondent would show the Court that in producing the documents requested, that the same would be voluminous and reproduction extremely costly. Therefore, Respondent specifically objects to surrendering the originals of the records to the location of Respondent s counsels office. To the extent that such documents exist, such documents will be made available in the office of Respondent s attorney at 181 Grand Avenue, Suite 225, Southlake, Texas 76092. Petitioner and her attorney may inspect such documents and shall pay for any copy costs during normal business hours at a mutually agreed upon time and date. Tex. R. Civ. Pro. 194.4. Q. Not a Permissible Form of Discovery Objection to this request is made because it inquires as to a type of discovery not permitted by the rules of discovery. See e.g. TEX. R. CIV. P. 195.1; TEX. R. CIV. P. 192.3 and 195.1. R. Work Product (1) Objection is made to this request to the extent it inquires as to communications passing between agents or representatives or the employees/employers of Petitioner or communications between Petitioner and its agents, representatives, or employees which are made subsequent to the occurrence or transaction upon which the suit is based and made in anticipation of the prosecution or defense of claims made a part of the pending litigation, all of which communications are protected from discovery. TEX. R. CIV. P. 192.5(A); Bearden v. Boone, 693 S.W.2d 25, 28 (Tex. App. Amarillo 1985) (orig. proceeding). S. Work Product (2) Objection is made to this request to the extent it seeks disclosure invasive of the mental impressions, conclusions, opinions or legal theories of Petitioner s attorney 64

or other representatives of Petitioner working solely to assist trial preparation, which are protected from discovery by the work product privilege. TEX. R. CIV. P. 192.5(b)(1); West v. Solito, 563 S.W.2d 240, 244 (TEX. 1978); TEX. R. EVID. 503. T. Attorney-Client Communication Objection is made to this request to the extent this request inquires as to communications between attorney and client [or between or among client of client s representative and his lawyer s representative or to a lawyer or representative of lawyer representing another party to a pending action and concerning a matter of common interest] made in confidence for the purpose of facilitating the rendition of professional legal services, all of which communications are protected from discovery by the attorney-client privilege pursuant to TEX. R. EVID. 503. U. Investigative Privilege Objection is made to this request to the extent that the information sought involves investigation by Petitioner or its agents or employees performed after the transaction or occurrence in question and in anticipation of claims made a part of the pending lawsuit and is privilege. TEX. R. CIV. P. 192.5. V. Irrelevant Information Objection is made to this request to the extent it seeks information which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. TEX. R. CIV. P. 192.3(a); TEX. R. EVID. 501. W. Request is Outside the Discovery Period Objection is made to this Request because it seeks the discovery of information outside the discovery period provided under 190.2, (for level 1) or 190.3(for level 2), 197.1 and 197.2 of the TEXAS RULES OF CIVIL PROCEDURE. X. Not Reasonably Available and/or Overly Burdensome Objection is made to this request to the extent that at the time the response is made, it is not reasonably available to Petitioner or Petitioner s attorney. Petitioner objects to this request because it seeks information the probative value of which is outweighed by the time and expense burden on Petitioner if discovery is allowed. TEX. R. CIV. P. 192.4; TEX. R. CIV. P. 193.1; TEX. R. EVID. 501. 65

Y. Premature Request Objection is made to this request to the extent it asks for information not yet available because said request is premature. Loftin v. Martin, 776 S.W.2d 145, 147 (Tex. 1989). Z. Excessive Number of Interrogatories Petitioner Objects to the excessive number of Petitioner s Interrogatories which would require in excess of the maximum allowable number as provided by the TEXAS RULES OF CIVIL PROCEDURE. AA. Self-Incrimination Objection is made to this request to the extent it violates the state and federal constitutional privilege against self-incrimination. Petitioner has a reasonable fear that the response to said request would tend to be incriminating in a criminal proceeding. Therefore, Petitioner has the right to assert the Fifth Amendment privilege to avoid civil discovery. U.S. Const., Amend. V.; TEX. CONST. ART. 1, 10. ANSWERS & OBJECTIONS 1. If you have used any expert for consultation who is not expected to be called as a witness, if that expert s opinion or impressions have been reviewed by any expert who may be called as a witness, state a. the identity and location of each consulting expert; b. the subject matter on which each consulting expert was consulted; c. the mental impressions and opinions held by each consulting expert; d. the facts known to each consulting expert that relate to or form the basis of the mental impressions and opinions held by that expert; and Petitioner s Answers and Objections to Respondent s Written Interrogatories Page 8 66

OBJECTION(S): e. a description of all documents and other tangible things used by, prepared by, prepared for, or furnished to each consulting expert, including all tests, calculations, reports, models, data, and compilations that form the basis of the consulting expert s opinions or impressions. Respondent specifically asserts Objection(s) A, S, & T, as set forth in the Key to Objections herein above, and without waiving said objections or Petitioner s right to present related evidence at trial, Petitioner answers in part as follows: ANSWER: There are none at this time. However, Respondent reserves the right to supplement his responses. Respondent further incorporates in full, as if fully set forth at length herein verbatim, any and all information requested by this discovery, which information has been provided in response to any other discovery responses provided by Respondent in this cause, including without limitation, Responses to Disclosure or Responses to Request for Production made formally or informally in any manner, including being placed in evidence at hearing of this matter, prior or subsequent to the filing of this response or any amended or supplemental response hereafter. TO RS 67

CAUSE NO. 123-43678-11 IN THE MATTER OF IN THE DISTRICT COURT THE MARRIAGE OF WIFE AND HUSBAND 123 rd JUDICIAL DISTRICT AND IN THE INTEREST OF MINOR CHILD, A CHILD TARRANT COUNTY, TEXAS PETITIONER S FIRST SET OF WRITTEN INTERROGATORIES TO RESPONDENT TO: HUSBAND, Respondent, by and through his attorney of record, OPPOSING LAWYER, 123 Legal Street, Fort Worth, Texas 76092, in accordance with the TEXAS RULES OF CIVIL PROCEDURE. Pursuant to Rule 197 of the TEXAS RULES OF CIVIL PROCEDURE, you are required to: (1) answer in complete detail and in writing each of the proceeding interrogatories, sign your answers to said questions, swear to the truth of your answers before a Notary Public or other Judicial Officer; and (2) file with the Court and deliver a complete, signed, and notarized copy of your answers to the undersigned attorney within thirty (30) days after service upon you in accordance with the TEXAS RULES OF CIVIL PROCEDURE. If you fail to comply with the requirements above, the Court may order you held in contempt of Court, fined, and/or confined in jail until you have obeyed all of the orders of the Court, and to pay attorney s fees. PETITIONER S FIRST SET OF WRITTEN INTERROGATORIES TO RESPONDENT Page 1 69

I. DEFINITIONS A. Person means and includes any individual, corporation, joint venture, limited liability entity, partnership, sole proprietorship, association, business, trust and/or any other organization and/or entity in which you own and/or have an interest. B. Document or documents means any kind of written or graphic matter, as defined in and encompassed by Rule 192 of the TEXAS RULES OF CIVIL PROCEDURE, however produced or reproduced, of any kind or description, whether sent or received or neither, including originals, copies, and drafts, and both sides thereof, and including, but not limited to, papers, books, letters, photographs, objects, tangible things, correspondence, telegrams, cables, telex messages, memoranda, notes, notations, work papers, transcripts (including trial and deposition transcripts), pleadings, minutes, reports and recordings of telephone or other conversations or of interviews or of conferences or of other meeting, affidavits, statements, summaries, opinions, reports, studies, analyses, evaluations, contracts, agreements, journals, statistical records, desk calendars, appointment books, day timers, day planners, diaries, lists, tabulations, sound recordings, computer printouts, data processing input and output, microfilms, computer discs or other memory elements, and all other records kept by electronic, photographic, or mechanical means, and things similar to any of the foregoing, however, denominated by you. PETITIONER S FIRST SET OF WRITTEN INTERROGATORIES TO RESPONDENT Page 2 70

C. Identify, when used herein means, with respect to each of the following, to state: (1) the full name, current home and business address, and home and business telephone number(s) of such person; (2) the company, firm or organization with which such person is affiliated with and/or by whom such person is employed; (3) the address and principal place of business of such organization and/or entity; and (4) the person s position, title, or job capacity. All such information shall include both the present time and the time covered by these Interrogatories. D. The term Other Entities includes, but is not limited to, any and all corporations, partnerships, professional associations, professional corporations, joint ventures, associations, trusts, limited liability entities, and any organization and/or entity which Opposing Party owns and/or has an interest in. E. The term Relating to means, when used in connection with these Written Interrogatories, referring to, reflecting upon, or in any manner identifying and/or describing the subject matter of the Interrogatory. PETITIONER S FIRST SET OF WRITTEN INTERROGATORIES TO RESPONDENT Page 3 71

F. The term Opposing Party refers to HUSBAND. G. The term Requesting party means WIFE. H. Documents. Every document to be so identified may be produced for inspection and copying at the time of your response to these Written Interrogatories, in lieu of such identification. I. Pronouns The pronouns he and his refer to both males and females. You, yours, and like terms refer to individuals and persons as identified herein. II. INSTRUCTIONS A. Time Unless otherwise specified, the relevant period of time covered by these Written Interrogatories shall be from January 1, 2006, to the current date, unless otherwise specified herein. B. Unable to Respond If you are unable to fully respond to any of these Written Interrogatories, after exercising due diligence to enable you to respond, YOU SHOULD ANSWER TO THE EXTENT POSSIBLE, SPECIFYING YOUR INABILITY TO ANSWER THE REMAINDER AND STATE WHATEVER INFORMATION AND KNOWLEDGE YOU HAVE CONCERNING THE UNANSWERED PORTION(S). PETITIONER S FIRST SET OF WRITTEN INTERROGATORIES TO RESPONDENT Page 4 72

C. Production of Documents Self Authenticating Be advised that in accordance with Rule 193.7 of the TEXAS RULES OF CIVIL PROCEDURE, Requesting Party hereby puts Opposing Party on actual notice that all documents produced herein by Opposing Party will be used in evidence in the above referenced case and will be considered self-authenticated. Therefore, any objection to authenticity Opposing Party may have to any of the documents produced herein should be filed no later than ten (10) days after the date said documents are commanded herein to be produced. III. INTERROGATORY SUBPARTS The number of interrogatories each party is permitted to serve (other than those about documents) is governed by the discovery control plan in effect. Parties in all three levels are limited to twenty-five (25) interrogatories, unless expressly changed by court order. TRCP 190.2(c)(3), 190.3(b)(3), 190.4(b). Each discrete subpart of an interrogatory is considered a separate interrogatory. TRCP 190.2 (c)(3), 190.3(b)(3). A discrete subpart asks for information not logically or factually related to the primary interrogatory. TRCP 190; in re swepi l.p., 103 S.W.3d 578, 289 (Tex.App. San Antonio 2003, orig. Proceeding). See ch. 6(f) 3.1(3)(1) of O connor s Texas Rules Civil Trials. PETITIONER S FIRST SET OF WRITTEN INTERROGATORIES TO RESPONDENT Page 5 73

The subparts contained herein ask for information logically and/or factually related to the primary interrogatory, therefore, an objection to any interrogatory herein under TRCP 190.2(c)(3) or 190.3(b)(3) is not permissible. Respectfully Submitted, KOONS FULLER, P.C. 181 Grand Avenue, Suite 225 Southlake, TX 76092 Tel: (817) 481-2710 Fax: (817) 481-2637 By: HEATHER L. KING State Bar No. 00794092 JESSICA HALL JANICEK State Bar No. 24069862 Attorneys for Petitioner Certificate of Service I certify that a true copy of the above was served on each attorney of record or pro se party, as applicable, in accordance with the TEXAS RULES OF CIVIL PROCEDURE on, 2011. Attorney for Petitioner PETITIONER S FIRST SET OF WRITTEN INTERROGATORIES TO RESPONDENT Page 6 74

Dear Opposing Lawyer: By this letter, you and Opposing Party are hereby given notice not to destroy, conceal, or alter any paper or electronic files and other data generated by and/or stored on your client's computers and storage media (e.g., hard disks, floppy disks, backup tapes), or any other electronic data, such as voicemail. Note: This notice applies both to computers, storage media, and other electronic data in which your client has a personal ownership interest as well as those of the business(es) in which he has an interest. As you know, your client's failure to comply with this notice can result in severe sanctions being imposed by the court for spoliation of evidence or potential evidence. Through discovery, we expect to obtain from you a number of documents and things, including files stored on your client's computers and on your client's computer storage media. You will soon receive initial interrogatories and requests for documents and things. To avoid spoliation, you will need to provide the data requested on the original media. Electronic documents and the storage media on which they reside contain relevant, discoverable information beyond that which may be found in printed documents. Therefore, even where a paper copy exists, we will require all documents in their electronic form. We may also discover the paper printouts of those documents that contain unique information after they were printed out (such as paper documents containing handwriting, signatures, annotations, highlighting, and redactions) along with any paper documents for which no corresponding electronic files exist. Our discovery requests will ask for certain data on the hard disks, floppy disks, and backup media used in your client's computers. Some of this data is not readily available to an ordinary computer user, such as "deleted" files and "file fragments." As you may know, although a user may "erase" or "delete" a file, all that is really erased is a reference to that file in the hard drive. Until and unless overwritten with new data, a "deleted" file can be as intact on the disk as any "active" file you would see in a directory listing. Courts have made it clear that all information available on electronic storage media is discoverable, whether readily readable ("active") or "deleted." Accordingly, electronic data and storage media that may be subject to our discovery requests and that your client is obligated to maintain (and not alter or destroy), includes but is not limited to the following: All digital or analog electronic files, including "deleted" files and file fragments, stored in machine-readable format on magnetic, optical, or other storage media, including the hard drives or floppy disks used by your client's computers and their backup media (e.g., other hard drives, backup tapes, data ports, keys, Zip disks, floppies, CD-ROMs) or otherwise, whether such files have been reduced to paper printouts or not. More specifically, your client is to preserve all e-mails, both sent and received, whether internally or externally; all word-processed files, including drafts and revisions; all spreadsheets, including drafts and revisions; all databases; all presentation 75

data or slide shows produced by presentation software (such as Microsoft PowerPoint); all graphs, charts and other data produced by project management software (such as Microsoft Project); all data generated by calendaring, task management, and personal information management software (such as Microsoft Outlook, Palm Calendar, or Lotus Notes); all data created with the use of personal data assistants (PDAs), such as PalmPilot, HP Jornada, Cassiopeia, or other Windows-based, or Pocket PC devices; all data created with the use of "smartphones," such as Treos, Blackberry, etc. or other similar devices; all data created with the use of document management software; all data created with the use of paper and electronic mail logging and routing software; all Internet and Web-browser-generated history files, caches, and "cookies" files generated at the workstation of each employee and/or agent in your client's business and on any and all backup storage media; and any and all other files generated by users through the use of computers and/or telecommunications, including but not limited to voicemail. Further, you are to preserve any log or logs of network use by your client personally or by him at the business(es) in which the parties' have an interest and his employees or otherwise, whether kept in paper or electronic form, and to preserve all copies of backup tapes and the software necessary to reconstruct the data on those tapes, so that there can be made a complete, bit-by-bit "mirror" evidentiary image copy of the storage media of each and every computer (and/or workstation) and network server in the client's control and custody, as well as image copies of all hard drives retained by you and no longer in service, but in use at any time from to the present. Your client is also not to delete, move, modify, encrypt, defrag, pack, compress, purge or otherwise dispose of files and parts of files unless a true and correct copy of such files is made. Your client is also to preserve and not destroy all passwords, decryption procedures (including, if necessary, the software to decrypt the files); network access codes, ID names, manuals, tutorials, written instructions, decompression or reconstruction software, and any and all other information and things necessary to access, view, and (if necessary) reconstruct the electronic data we will request through discovery. 1. Business Records: [All documents and information about documents containing backup and/or archive policy and/or procedure, document retention policy, names of backup and/or archive software, names, and addresses of any offsite storage provider.] All e-mail and information about e-mail (including message contents, header information, and logs of e-mail system usage) sent or received by him and/or the following persons: All other e-mail and information about e-mail (including message contents, header information, and logs of e-mail system usage) containing information about or related to: All databases (including all records and fields and structural information in such databases), containing any reference to and/or information about or related to: 76

All logs of activity (both in paper and electronic formats) on computer systems and networks that have or may have been used to process or store electronic data containing information about or related to: All word processing files, including prior drafts, "deleted" files, and file fragments, containing information about or related to: With regard to electronic data created by application programs, which process financial, accounting and billing information, all electronic data files, including prior drafts, back-up files, "deleted" files, and file fragments, containing information about or related to: All files, including prior drafts, "deleted" files, and file fragments, containing information from electronic calendars and scheduling programs regarding or related to: All electronic data files, including prior drafts, "deleted" files, and file fragments about or related to: 2. Online Data Storage on Mainframes and Minicomputers: With regard to online storage and/or direct access storage devices attached to your client's mainframe computers and/or minicomputers: they are not to modify or delete any electronic data files, "deleted" files, and file fragments existing at the time of this letter's delivery, which meet the definitions set forth in this letter, unless a true and correct copy of each such electronic data file has been made and steps have been taken to assure that such a copy will be preserved and accessible for purposes of this litigation. 3. Offline Data Storage, Backups and Archives, Floppy Diskettes, Tapes, and Other Removable Electronic Media: With regard to all electronic media used for offline storage, including magnetic tapes and cartridges and other media that, at the time of this letter's delivery, contained any electronic data meeting the criteria listed in paragraph 1 above: Your client is to stop any activity that may result in the loss of such electronic data, including rotation, destruction, overwriting and/or erasure of such media in whole or in part. This request is intended to cover all removable electronic media used for data storage in connection with their computer systems, including magnetic tapes and cartridges, magneto-optical disks, floppy diskettes, and all other media, whether used with personal computers, minicomputers, or mainframes or other computers, and whether containing backup and/or archive data sets and other electronic data for all of their computer systems. 4. Replacement of Data Storage Devices: Your client is not to dispose of any electronic data storage devices and/or media that may be replaced due to failure and/or upgrade and/or other reasons that may contain electronic data meeting the criteria listed in paragraph 1 above. 5. Fixed Drives on Stand-alone Personal Computers and Network Workstations: With regard to electronic data meeting the criteria listed in paragraph 1 above, which existed on fixed drives attached to stand-alone microcomputers and/or network workstations at the time of this letter's delivery, your client is not to alter or erase such electronic data, and not to perform other procedures (such as data compression and disk defragmentation or optimization routines) that may impact such 77

data, unless a true and correct copy has been made of such active files and of completely restored versions of such deleted electronic files and file fragments, copies have been made of all directory listings (including hidden files) for all directories and subdirectories containing such files, and arrangements have been made to preserve copies during the pendency of this litigation. 6. Programs and Utilities: Your client is to preserve copies of all application programs and utilities, which may be used to process electronic data covered by this letter. 7. Log of System Modifications: Your client is to maintain an activity log to document modifications made to any electronic data-processing system that may affect the system's capability to process any electronic data meeting the criteria listed in paragraph 1 above, regardless of whether such modifications were made by employees, contractors, vendors and/or any other third parties. 8. Evidence Created Subsequent to This Letter: With regard to electronic data created subsequent to the date of delivery of this letter, relevant evidence is not to be destroyed and your client is to take whatever steps are appropriate to avoid destruction of evidence. Any and all media storage devices containing potentially discoverable information should not be disposed of due to upgrades, failures, or any other reason. To assure that your obligations and those of your client preserve documents and things will be met, please forward a copy of this letter to all persons and entities with custodial responsibility for the items referred to in this letter. 78

[Address] Re: [Case and Cause Number] Dear [Client]: [date] Enclosed please find a copy of correspondence sent to the opposing counsel in the above styled and numbered matter, detailing the attorney s and the attorney s client's responsibility to preserve electronic information. This obligation is equally applicable to you during this case. Please note that the failure to preserve and retain electronic data can be considered spoliation of evidence which could result in severe sanctions from the court. You must preserve and retain all paper and electronic evidence in this case and must not destroy it whether intentionally or through the normal use of a computer. The simple continued operation of a computer system will likely result in the destruction of relevant evidence due to the fact that electronic evidence can be easily altered, deleted, or otherwise modified. You have a legal obligation to preserve all documents and evidence that is or could be the subject of discovery requests. Especially now that we have notified the opposing counsel of our intent to request electronic information, you will not be able to claim you were unaware that electronic data (such as e-mail or Internet use records) were likely to be the subject of discovery requests. The obligation to preserve evidence and documents can be violated simply by continuing practices that may have been normal prior to this litigation such as deleting e-mails after having read them. Please note that deleted information is easily detectable by a forensic computer expert. If you have any questions regarding your obligations to preserve evidence and documents, including electronic information, or information that the other party may be disobeying such duty to preserve, please contact us to discuss this matter in further detail. Respectfully, [Lawyer] 79

CAUSE NO. 231-123456-11 IN THE MATTER OF IN THE DISTRICT COURT THE MARRIAGE OF WIFE AND HUSBAND 231 ST JUDICIAL DISTRICT AND IN THE INTEREST OF CHILD, MINOR CHILD TARRANT COUNTY, TEXAS TEMPORARY RESTRAINING ORDER, ELECTRONIC PROTECTIVE ORDER, AND ORDER ON EMERGENCY MOTION TO GAIN ACCESS TO IPAD AND IPHONE On, 2011, the Court considered the Emergency Motion for Temporary Restraining Order, Electronic Protective Order, and Motion to Gain Access to Computers and Other Electronic Devices of WIFE, Movant. The Court finds that said Motion should be GRANTED, and IT IS THEREFORE ORDERED that: 1. HUSBAND is required to immediately produce the following iphone(s), ipad(s), and other electronic device(s), in the possession of or owned by HUSBAND, to EXPERT of Computer Company, L.L.C. or any other representative of Computer Company, L.L.C., 123 Park Drive, Suite A, Plano, Texas 76092in order for Computer Company, L.L.C., to make forensic image(s) of the equipment immediately and on-site, the original of which shall be returned to HUSBAND immediately thereafter: a. b. c. d. e. f. g. h. Temporary Restraining Order, Electronic Protective Order, and Order on Emergency Motion to Gain Access to ipad and iphone PAGE 1 81

2. HUSBAND is ORDERED to immediately turn over his Blackberry and/or iphone and/or ipad and/or cell phone to EXPERT or any other representative of Computer Company, L.L.C. HUSBAND is further ORDERED to lead EXPERT or any other representative of Computer Company, L.L.C., to the location of each of the above listed iphone(s), ipad(s), and other electronic device(s) in the possession of or owned by HUSBAND, immediately upon the signing of this order. HUSBAND is further ORDERED to allow EXPERT or any other representative of Computer Company, L.L.C. immediate access to each of the above listed iphone(s), ipad(s), and other electronic device(s) for the purpose of making forensic image(s) of the equipment on site. 3. EXPERT and any other representative(s) of Computer Company, L.L.C. are authorized to transport the forensic image(s) of the above listed iphone(s), ipad(s), and other electronic device(s) to the offices of Computer Company, L.L.C., to be analyzed, and the actual electronic devices identified above shall then remain in the possession of Respondent. 4. HUSBAND and his respective officers, agents, servants, employees, and attorneys, and all persons in active concert or participation with him who receives actual notice of this order by personal service or otherwise, are restrained and enjoined from altering, using, modifying, deleting, selling, transferring, or in any other way jeopardizing any electronic files relevant to this lawsuit, including but not limited to all files and data on HUSBAND iphone(s), ipad(s), and other electronic device(s). 5. HUSBAND is further restrained and enjoined from instructing anyone to alter, use, modify, delete, sell, transfer, or in any other way jeopardize any electronic files relevant to this lawsuit, including but not limited to all files and data on HUSBAND iphone(s), ipad(s), and other electronic device(s), on his behalf until Computer Company, L.L.C., 123 Park Drive, Suite A, Plano, Texas 76092, completes making forensic image(s) of the electronic data contained in such equipment. 6. HUSBAND is restrained and enjoined from communicating with any person in any manner regarding the substance of this Order, including but not limited to any communications made by way of his cellular telephone, any other telephone, or by email until Computer Company, L.L.C., 123 Park Drive, Suite A, Plano, Texas 76092, completes the forensic images of each iphone(s), ipad(s), and other electronic device(s) identified above. 7. Upon Computer Company, L.L.C. s completion of making a forensic image of each iphone(s), ipad(s), and other electronic device(s) identified herein, Computer Company, L.L.C. shall not share any information concerning the data contained thereon with attorney for Movant. 8. Computer Company, L.L.C. shall process and analyze information contained on the iphone(s), ipad(s), and other electronic device(s) and provide to Respondent, by and through Respondent s attorney of record, any information pertaining to this case which are found on Respondent s iphone(s), ipad(s), and other electronic Temporary Restraining Order, Electronic Protective Order, and Order on Emergency Motion to Gain Access to ipad and iphone PAGE 2 82

device(s). 9. Respondent and Respondent s attorney shall review the information provided to Respondent by Computer Company, L.L.C., and create a log of privileged information contained therein within ten (10) business days of receiving said information from Computer Company, L.L.C. 10. Computer Company, L.L.C., shall then extract information identified as privileged in Respondent s log from the information pertaining to this case, and turn the rest over to the Court for an in camera review. This Court shall then order Respondent to provide said information to counsel for Petitioner, as the Court finds appropriate. 11. IT IS ORDERED that HUSBAND pay all of the costs and expenses associated with the services provided by Computer Company, L.L.C. Said expenses are taxed as costs to Respondent under Texas Rules of Civil Procedure 143, and are ORDERED to be paid directly to Law Firm, P.C., 123 Legal Avenue, Ste 18, Fort Worth, Texas 76092, who may enforce the order in its own name. 12. This order pertains only to information that may be relevant to, or may lead to the discovery of information relevant to, the pending litigation styled above. Any information described or referred to in any discovery request or response made during this litigation shall, from the time of the request or response, be treated for such purposes of this order as containing such information unless and until the Court rules such information to be irrelevant. SIGNED on, 2011. JUDGE PRESIDING Temporary Restraining Order, Electronic Protective Order, and Order on Emergency Motion to Gain Access to ipad and iphone PAGE 3 83

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