in Re: Meadowbrook Baptist Church

Opinion

Conditionally Granted and Opinion Filed June 15, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00271-CV

IN RE MEADOWBROOK BAPTIST CHURCH, Relator

Original Proceeding from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-21-01593-E

MEMORANDUM OPINION Before Justices Osborne, Partida-Kipness, and Smith Opinion by Justice Partida-Kipness In this original proceeding, relator Meadowbrook Baptist Church seeks a writ

of mandamus directing the trial court to vacate its discovery order authorizing direct

access to Meadowbrook’s office computer for forensic inspection. We requested a

response to the petition for writ of mandamus. No response was filed. After

reviewing the petition and the record, we conclude Meadowbrook is entitled to the

relief requested, and we conditionally grant the petition for writ of mandamus.

BACKGROUND

The underlying personal injury lawsuit arises out of an incident in which real

party in interest Cheryll Blalock was injured on Meadowbrook’s premises. Blalock

asserts that she suffered severe injuries and permanent disability when a set of “murphy bed style” stairs crushed her after she undid a latch to what she believed

was a door to an adjacent, baptismal room. After filing suit, Blalock served

Meadowbrook with discovery requests. Meadowbrook served its initial disclosures

and first amended disclosures, and its objections and responses to Blalock’s first,

second, and third requests for production, interrogatories, and requests for

admission. When responding to the requests for production, Meadowbrook withheld

only five documents: baptismal certificates of minors. Aside from those certificates,

Meadowbrook searched for responsive documents and produced documents

responsive to the requests for which it had documents in its possession. For the rest,

Meadowbrook stated either that (1) the requested document does not exist, (2) after

a diligent search, Meadowbrook has been unable to identify any documents

responsive to the request, or (3) Meadowbrook is not in possession of documents

responsive to the request. The documents Meadowbrook produced included meeting

minutes responsive to Blalock’s request for “meeting minutes and similar

documents” in which the incident at issue or the baptismal pool stairs were discussed

and baptismal certificates of adults from 2013.

On October 5, 2021, Blalock served “Plaintiff’s Inspection and Entry into

Property Request Pursuant to Texas Rules of Civil Procedure 196.7 and 196.4”

(RFI), in which she sought direct access to Meadowbrook’s “prior office computer”

(the computer) for search and inspection by an unnamed forensic expert. Blalock

requested that the search parameters include seven categories of documents:

–2– • All documents, receipts, invoices, and contracts concerning or referencing the baptismal pool or baptismal chamber, including the side rooms;

• All baptismal certificates;

• All meeting minutes discussing or concerning the baptismal room, baptismal chamber or repairs and/or renovations to the same;

• All receipts, invoices, or contracts concerning installation or repairs made to the baptismal pool heater;

• All checks, receipts, or invoices concerning repairs or installation to the baptismal pool or baptismal rooms;

• All blueprints of the church; and

• All documents referencing or concerning raising or lowering the baptismal room stairs.

Blalock had not previously requested production of documents in three of those

categories: baptismal certificates prior to 2013 and after the incident, all blueprints

of the church, and documents regarding raising or lowering the baptismal room

stairs. The remaining categories, however, were included in prior requests for

production and responded to by Meadowbrook. In its previous responses to those

requests, Meadowbrook produced meeting minutes responsive to Blalock’s request

for “meeting minutes and similar documents” in which the incident at issue or the

baptismal pool stairs were discussed, as well as baptismal certificates of adults in

2013. As for the remaining categories, Meadowbrook responded that after “a diligent

search” it had been unable to locate documents responsive to the requests.

–3– On November 4, 2021, Meadowbrook responded to Blalock’s RFI. In its

response, Meadowbrook objected to the request to search the computer as

duplicative of prior requests for production, overbroad, not reasonably limited in

time and/or scope, and seeking discovery of irrelevant documentation.

Meadowbrook further objected that discovery of the computer itself was an

impermissible attempt to expand the scope of discovery allowed under Texas law.

Specifically, Meadowbrook argued that Blalock had failed to follow the necessary

procedures for electronic discovery set forth under In re Weekley Homes, L.P., 295

S.W.3d 309 (Tex. 2009) (orig. proceeding), and In re Shipman, 540 S.W.3d 562

(Tex. 2018) (orig. proceeding) (per curiam). Subject to its objections and without

waiving them, Meadowbrook noted its prior agreement to allow a search of the

computer if an agreement was reached regarding the search terms and protocols to

be utilized, and if the search was conducted pursuant to various specified conditions.

One of those conditions was that the search be limited to seeking the following

meeting minutes:

[R]esponsive minutes of Congregational Meetings. Stewardship Committee Meetings, and/or Deacon’s Meetings (such as those previously produced as MBC 000231, 000233, 000246) that may have previously been stored upon that computer and still be recoverable, upon an agreement being reached as to the search terms and search protocols to be utilized to seek whether such recoverable documentation may even exist upon the computer, . . .

On November 8, 2021, Blalock filed a motion to compel, seeking an order

compelling direct access to the computer. Blalock insisted that Meadowbrook had

–4– previously represented that the computer contained years of prior records that were

allegedly deleted by a prior employee before Blalock’s injury, and she complained

that Meadowbrook had produced very little by way of production despite that

representation. In response to Meadowbrook’s objections based on Weekley Homes

and Shipman, Blalock argued those cases were factually distinguishable from this

case and, thus, inapplicable. Blalock also maintained that Meadowbrook’s general

boilerplate objections were insufficient, and that Meadowbrook waived any

burdensome complaint because it had already agreed to an inspection.

In its response to the motion to compel, Meadowbrook explained that it had

not agreed to submit to the inspection. Rather, Meadowbrook clarified that it

remained willing to enter into an inspection agreement subject to its objections and

to the terms and conditions set forth in its response to the RFI. Meadowbrook also

insisted that Weekley Homes and Shipman controlled the dispute and required

Blalock to make an evidentiary showing that Meadowbrook defaulted in its

discovery obligations. Meadowbrook maintained the court should deny the motion

to compel because Blalock had not met that threshold evidentiary showing. Blalock

did not file a reply.

The trial court held a hearing on the motion to compel. According to the

affidavit of Meadowbrook’s counsel, the hearing was not transcribed, and no

evidence of any kind or character was offered to or received by the trial court. On

December 15, 2021, the trial court issued an order granting the motion to compel.

–5– The trial court authorized access to and an inspection of the computer by Blalock’s

unidentified forensic computer expert. The court directed that the inspection would

occur according to the protocol set forth in Meadowbrook’s objections and responses

to the RFI, but it did not limit the search to meeting minutes as requested by

Meadowbrook. Rather, the search would encompass all of the topics and terms

requested by Blalock. This original proceeding followed.1

STANDARD OF REVIEW

Mandamus is an extraordinary remedy that is available only in limited

circumstances. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.

proceeding). Mandamus relief is available when the trial court abuses its discretion

and there is no adequate remedy by appeal. In re Deere & Co., 299 S.W.3d 819, 820

(Tex. 2009) (orig. proceeding) (per curiam).

The ultimate purpose of discovery is to seek the truth, so disputes may be

decided by what the facts reveal, not by what facts are concealed. In re Colonial

Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding) (per curiam). The

scope of discovery largely rests within the discretion of the trial court. Ginsberg v.

Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985) (orig. proceeding). For

that reason, in considering whether a trial court has clearly abused its discretion with

1 This is the second original proceeding filed by Meadowbrook concerning the December 15, 2021 order. On January 31, 2022, this Court denied Meadowbrook’s first mandamus petition on the grounds that the record was not properly sworn or certified pursuant to Texas Rule of Appellate Procedure 52 (Cause No. 05-22-00046-CV). Meadowbrook re-filed this petition after curing the Rule 52 deficiencies. –6– regard to a discovery order, the reviewing court may not substitute its judgment for

the judgment of the trial court. Walker, 827 S.W.2d at 839–40. “Even if the

reviewing court would have decided the issue differently, it cannot disturb the trial

court’s decision unless it is shown to be arbitrary and unreasonable.” Id. at 840.

“When a trial judge exercising an otherwise discretionary authority has only one

course to follow and one way to decide, however, the discretion vested in the court

is for all practical purposes destroyed.” In re Goodyear Tire & Rubber Co., 437

S.W.3d 923, 927–28 (Tex. App.—Dallas 2014, orig. proceeding). Thus, when

challenging matters ordinarily committed to the broad discretion of the trial court, a

relator in a mandamus proceeding must establish that the trial court could reasonably

have reached only one decision. Walker, 827 S.W.2d at 839–40.

“Mandamus relief is available when the trial court compels production beyond

the permissible bounds of discovery.” Weekley Homes, 295 S.W.3d at 322; In re

Arpin Am. Moving Sys., LLC, 416 S.W.3d 927, 930 (Tex. App.—Dallas 2013, orig.

proceeding) (“When a trial court orders discovery that exceeds that permitted by the

rules of procedure, it abuses its discretion and the resisting party has no adequate

remedy by appeal.”) (citing In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig.

proceeding) (per curiam)). “Intrusive discovery measures—such as ordering direct

access to an opponent’s electronic storage device—require, at a minimum, that the

benefits of the discovery measure outweigh the burden imposed upon the discovered

party.” Weekley Homes, 295 S.W.3d at 322 (citing TEX. R. CIV. P. 196.4, 192.4); In

–7– re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). “If an appellate court cannot remedy a trial court’s discovery error, then

an adequate appellate remedy does not exist.” In re Dana Corp., 138 S.W.3d 298,

301 (Tex. 2004) (orig. proceeding) (per curiam).

APPLICABLE LAW

When a specific request for electronic information has been lodged, Texas

Rule of Civil Procedure 196.4 requires the responding party either to produce

responsive electronic information that is reasonably available to the responding party

or to object on grounds that the information cannot through reasonable efforts be

retrieved or produced in the form requested. TEX. R. CIV. P. 196.4. The Texas

Supreme Court has delineated the proper procedure for electronic discovery under

rule 196.4. See Weekley Homes, 295 S.W.3d at 317, 322. “An order requiring direct

access to an electronic device is burdensome because it is intrusive.” In re VERP

Inv., LLC, 457 S.W.3d 255, 261 (Tex. App.—Dallas 2015, orig. proceeding).

“Providing access to information by ordering examination of a party’s electronic

storage device is particularly intrusive and should be generally discouraged, just as

permitting open access to a party’s file cabinets for general perusal would be.”

Weekley Homes, 295 S.W.3d at 317. Accordingly, “as a threshold to granting access

to electronic devices, ‘the requesting party must show that the responding party has

somehow defaulted in its obligation to search its records and produce the requested

data.’” Shipman, 540 S.W.3d at 567–68 (quoting Weekley Homes, 295 S.W.3d at

–8– 317). “But we do not rely on ‘mere skepticism or bare allegations that the responding

party has failed to comply with its discovery duties.’” Id. (quoting Weekley Homes,

295 S.W.3d at 318).

“The evidentiary requirements imposed by In re Weekley Homes on a party

requesting direct access to an opponent’s electronic device rest on the principle that

if a court determines production of electronic data is warranted, as the trial court

determined in this case, the least intrusive means of providing relevant, responsive

information should be employed.” VERP Inv., 457 S.W.3d at 261. A party from

whom discovery is sought is entitled to protection from an unreasonable invasion of

personal, constitutional, or property rights. In re Cooley, No. 05-21-00445-CV, 2022

WL 304706, at *2–4 (Tex. App.—Dallas Feb. 2, 2022, orig. proceeding) (mem. op.)

(citing VERP Inv., 457 S.W.3d at 261). Courts considering requests for direct access

to electronic devices, therefore, must “guard against undue intrusiveness.” Weekley

Homes, 295 S.W.3d at 316. While direct “access [to a party’s electronic storage

device] might be justified in some circumstances,” the rules are “not meant to create

a routine right of direct access.” Id. at 317 (quoting FED. R. CIV. P. 34 advisory

committee’s notes to the 2006 amendments). Thus, the evidentiary showing of

default in compliance with discovery obligations required by Weekley Homes before

direct access to an electronic device is permitted is a “threshold matter.” See id.

–9– DISCUSSION

Under Weekley Homes and its progeny, Blalock was required to make an

evidentiary showing that Meadowbrook defaulted in its obligation to search its

records and produce the requested data, that its production had been inadequate, and

that a search of the computer could recover relevant materials. See VERP Inv., 457

S.W.3d at 262. Under this record, we conclude Blalock did not meet her threshold

burden of providing such evidence.

To begin, Blalock presented the trial court with no evidence that

Meadowbrook defaulted in its discovery obligations. On the contrary, the mandamus

record shows that Meadowbrook fulfilled its discovery obligations. Meadowbrook

responded to Blalock’s discovery requests and produced responsive documents in

its possession. Where Meadowbrook found no responsive documents to a request,

Meadowbrook confirmed that it diligently searched for responsive documents and

found none. Indeed, the record shows that Meadowbrook withheld only five

responsive documents, which were baptismal certificates of minors. Moreover, in its

response and objections to the RFI, Meadowbrook presented a suggested protocol

and parameters for searching the computer and stated that it would allow a search of

the computer if an agreement could be reached with Blalock as to search terms and

search protocols. Rather than negotiate such an agreement with Meadowbrook,

however, Blalock filed her motion to compel. We conclude nothing in the record

supports a conclusion that Meadowbrook defaulted in its discovery obligations or

–10– that its production was inadequate. Blalock failed to meet her evidentiary burden of

showing default here.

Similarly, Blalock presented no evidence that a search of the computer could

recover relevant materials. She relied solely on her suspicions that a forensic expert

would be able to recover additional relevant materials that may have been deleted

from the computer prior to the incident in question. Mere skepticism or bare

allegations that the responding party has failed to comply with its discovery duties

are not sufficient to warrant an order requiring direct access to an opposing party’s

electronic device. Weekley Homes, 295 S.W.3d at 318. Under this record, we

conclude Blalock failed to meet her threshold burden of proof to allow access to the

computer. We, therefore, conclude that the trial court abused its discretion by

granting the motion to compel.

The harm and burden Meadowbrook will suffer from being required to

relinquish control of its computer for forensic inspection, and the harm that might

result from revealing private conversations and privileged or otherwise confidential

communications, cannot be remedied on appeal. See Walker, 827 S.W.2d at 843

(noting that party will not have adequate remedy by appeal when trial court’s order

“imposes a burden on the producing party far out of proportion to any benefit that

may obtain to the requesting party”) (citing Sears, Roebuck & Co. v. Ramirez, 824

S.W.2d 558 (Tex. 1992) (orig. proceeding)); see also Arpin Am. Moving Sys., 416

S.W.3d at 930 (no adequate remedy by appeal when the discovery ordered exceeds

–11– that permitted by the rules of procedure). Meadowbrook, therefore, lacks an

adequate remedy by appeal.

CONCLUSION The trial court abused its discretion by granting Blalock’s motion to compel,

and Meadowbrook lacks an adequate remedy by appeal. Accordingly, we conclude

Meadowbrook is entitled to mandamus relief. We conditionally grant the writ of

mandamus and order the trial court to vacate its December 15, 2021 order granting

the motion to compel. We are confident that the trial court will comply with our

order, and our writ will issue only if it does not.

220271f.p05 /Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE

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