ESI Discovery In Texas

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Texas Supreme Court Case Clarifies ESI Discovery

Written discovery has always been a significant expense to litigants primarily due to attorney time devoted to the review of voluminous documents. The prevalence of technology in our lives has had a correlative effect on the amount of discovery and therefore on the costs of litigation. Where once discovery was limited to hard documents in an actual file, it now includes electronically stored information (“ESI”). So, in addition to paying attorneys’ fees for the lawyering related to discovery, clients now face added expenses for capturing and producing ESI. With the increased relevance of electronic information to cases, disputes about what ESI is discoverable and the manner in which it is produced have also multiplied.

In re State Farm Lloyds (Tex. 2017) 2017 WL 2323099

Recently, the Supreme Court of Texas issued an opinion that provides guidance on this type of discovery. In re State Farm Lloyds arose from a dispute over the format in which ESI was to be produced. The requesting party wanted it in native form while the responding party believed searchable static form was sufficient. The trial court ordered production in native form, and after the court of appeals denied mandamus relief, the Texas Supreme Court chose to hear the matter in order to provide further clarity on ESI discovery.

Parity With the Federal Rules of Civil Procedure

As stated by the Court, its ruling is intended to align the Texas Rules of Civil Procedure on this matter with the Federal Rules by focusing on proportionality. In doing so, it held that “when a reasonably usable form [of ESI] is readily available in the ordinary course of business, the trial court must assess whether any enhanced burden or expense associated with a requested form is justified when weighed against the proportional needs of the case.” Id. at 8. It further held that this proportionality examination should be applied on a case-by-case basis and take into account the following:

1) The likely benefit of the requested discovery,
2) The needs of the case,
3) The amount in controversy,
4) The parties’ resources,
5) The importance of the issues at stake in the litigation,
6) The importance of the proposed discovery in resolving the litigation, and
7) Any other articulable factor bearing on proportionality.

The Court expounds on each of these factors and in doing so provides deeper guidance on how to ensure the parties can fairly litigate their case in a manner that is expedient, cost-effective, and practical.


The Court denied the mandamus relief without prejudice, which sent the dispute back to the trial court for possible reconsideration in light of the proportionality factors. For other litigants, who almost certainly will face ESI issues, the opinion has provided working parameters that hopefully, as the Court says, will make electronic discovery more of a “collaborative enterprise” between the parties. Id. at 14.

Kristi Morgan AronicaKristi Morgan Aronica, Attorney