in Re Robert B. Wilcox

• Court: Court of Appeals of Texas
• Decided: March 18, 2021
• Docket: 09-20-00271-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00271-CV __________________

IN RE ROBERT B. WILCOX __________________________________________________________________

Original Proceeding 172nd District Court of Jefferson County, Texas Trial Cause No. E-205,503 __________________________________________________________________

MEMORANDUM OPINION

In a petition for a writ of mandamus, Robert B. Wilcox asks this Court to

compel the trial court to vacate orders appointing a specialist and establishing

protocols for collection, preservation, and production of electronically stored

information. We stayed the trial court’s orders and requested a response from the

real party in interest, Southeast Texas Veterinary Clinics, PLLC (“STVC”). After

considering the petition, the response, the reply, the appendices submitted by the

parties, and the applicable law, we conclude that the trial court clearly abused its

discretion by ordering Wilcox to turn over personal electronic devices and account

access in response to STVC’s allegations that Wilcox failed to comply with his

1 discovery duties. We further conclude Wilcox lacks an adequate remedy by appeal

for the trial court’s abuse of discretion and conditionally grant mandamus relief.

According to the allegations contained in its original petition, STVC

purchased Wilcox’s veterinary practice in 2017. In connection with this transaction,

the parties entered into an asset purchase agreement. STVC alleges that the purchase

included Wilcox’s goodwill, inventory, and customer and client lists, and an

employment agreement that included Wilcox’s agreement to work for STVC and not

to compete with STVC within a 20-mile radius and not to solicit actual or

prospective clients for the purposes of providing similar services and products as

provided by STVC during a time frame outlined in the agreement. STVC alleged

that after Wilcox’s employment with STVC ended on January 1, 2020, Wilcox

attempted to work with or solicit referrals from veterinary clinics located within the

20-mile radius of STVC. STVC sued Wilcox for breach of contract and fraud. STVC

also sued another veterinarian, Donna Hall, and Dayton Veterinary Clinic, P.C.,

(collectively “Dayton”) for tortious interference with STVC’s restrictive covenants

with Wilcox and sought money damages and injunctive relief. STVC amended its

pleadings to add a defamation claim against Wilcox.

In connection with the litigation, the trial court granted STVC’s motion for

expedited discovery and ordered Wilcox to produce all communications in 2020

between Wilcox and any veterinary practice or clinic, and all communications in

2 2020 between Wilcox and any person or entity Wilcox knew to be a client or

customer of STVC or that Wilcox knew had referred business to STVC. In the same

order, the trial court ordered the other defendants to produce all communications,

offers of employment, and agreements from December 21, 2017 to the present

between Dayton and Wilcox, and all communications in 2020 between Dayton and

a client or customer or referral-provider of STVC. The trial court also ordered all the

defendants to answer interrogatories and to appear for deposition.

After depositions were obtained and Wilcox had responded to the written

discovery requests, counsel for STVC notified Wilcox’s attorney that text messages

existed between Wilcox and Hall that had not been produced by Wilcox but were

produced by Hall. In his deposition, Wilcox testified that he had provided his

attorney with all the e-mails and text messages that he had in his possession. Wilcox

claimed he did not delete any e-mails or text messages that might be responsive to

STVC’s document requests, but he stated his phone sometimes does “funny things.”

Wilcox answered an interrogatory about what he did to look for messages as follows:

I searched my phone, email, computer, and any physical files where I might find documents related to my employment, the sale of the assets of Wilcox Veterinary Clinic, or anything relevant to this lawsuit. I used multiple different search terms, such as “sale,” “Wilcox Veterinary Clinic,” “Hanson,” “employment,” “purchase,” “inventory,” and “contract,” among other similar things.

And in his deposition, he stated he had looked at his e-mails and messages on his

phone and home computer and produced items responsive to the written requests to 3 his attorney. Wilcox indicated that rather than conducting keyword searches he

looked at the e-mails on his personal e-mail account. STVC then requested

production of documents in native format, including, “All documents and

communications identified or reviewed by you in response to any interrogatory or

request for admission that Plaintiff served on you.” Wilcox responded, “None.”

STVC moved to compel documents and disclosures from Wilcox on the

ground that he provided incomplete responses. STVC also moved to overrule

assertions of attorney-client and work product privilege by Wilcox’s attorney-

daughter, Kacie Wilcox Barbay. STVC claimed Barbay provided business advice

but not legal advice to Wilcox. Wilcox submitted text messages in camera. The trial

court ordered production of the text messages.

The trial court also held a temporary injunction hearing on April 17, 2020. A

transcript of the hearing is part of the mandamus record. At the hearing, STVC’s

counsel showed Wilcox the text messages that co-defendant Hall had produced in

discovery, which appeared to be between Wilcox and Hall. The following exchange

occurred during the hearing about the e-mails produced by Hall.

Q. You have not produced your text messages of communications between you and Dr. Hall; is that right? A. (Indiscernible) [Reporter requests clarification.] A. I produced all the text messages I had. Q. [] So, have you deleted the text messages between yourself and Dr. Hall?

4 A. I haven't personally done it, but I don’t know what my -- my phone does funny things. Q. Did you search for text message communications between yourself and Dr. Hall? A. When I was asked for them, I searched and sent all I had. Q. Okay. Have you had a chance to review or generally review Plaintiff’s Exhibit 4? A. Generally, yes, ma’am. Q. Do you have any reason to dispute that this is an accurate account of text messages between you and Dr. Hall? A. Yes. Q. You do dispute that this is an accurate depiction? A. Oh, I think they are accurate.

On July 29, 2020, the trial court denied STVC’s motion to overrule Wilcox’s

assertion of attorney client privilege. Wilcox submitted a privilege log.

On August 17, 2020, STVC moved to compel production of Wilcox’s

electronically stored information (“ESI”). STVC alleged that Wilcox conducted

inadequate searches for responsive documents or withheld responsive documents

without providing a log or otherwise indicating he had withheld documents. STVC

complained that in discovery Hall produced text messages between Hall and Wilcox

that Wilcox failed to produce. STVC also alleged that search terms provided by

Wilcox “fail to touch on all the issues in this case.”

On September 3, 2020, the trial court granted STVC’s motion to compel

production of ESI, appointed an e-discovery specialist to search Wilcox’s ESI using

search terms filed under seal, and the court also instructed the specialist to determine

and report whether any files have been modified, deleted, moved, or otherwise

5 altered. Wilcox asked the trial court to reconsider its ruling. On November 16, 2020,

the trial court signed an amended order. The trial court revised the search terms of

Wilcox’s ESI and revised the procedures for collecting and producing documents

but retained the previous order’s findings that Wilcox had defaulted in his discovery

obligations, that there are no less intrusive ways to obtain the requested documents,

and that the named specialist is qualified.

In his petition for a writ of mandamus, Wilcox argues the trial court clearly

abused its discretion by ordering him to turn over his and his wife’s personal

electronic devices and account access in response to mere skepticism or bare

allegations that he had failed to comply with discovery duties.

Mandamus will issue to correct a discovery order if there is a clear abuse of

discretion and there is no adequate remedy at law. In re Colonial Pipeline Co., 968

S.W.2d 938, 941 (Tex. 1998) (orig. proceeding). A trial court abuses its discretion

when its ruling is so arbitrary and unreasonable that it constitutes a clear and

prejudicial error of law. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.

proceeding). “A discovery order that compels production beyond the rules of

procedure is an abuse of discretion for which mandamus is the proper remedy.” In

re Nat’l Lloyds Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014) (orig. proceeding).

When considering whether to compel the production of electronic data, the

trial court must balance: (1) the likely benefit of the requested discovery; (2) the

6 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. In re State Farm Lloyds, 520 S.W.3d 595, 607-12 (Tex. 2017) (orig.

proceeding). “[A]ll discovery is subject to the proportionality overlay embedded in

our discovery rules and inherent in the reasonableness standard to which our

electronic-discovery rule is tethered.” Id. at 599.

“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.” In

re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009) (orig. proceeding). “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.’” In re Shipman, 540 S.W.3d 562, 567 (Tex.

2018) (orig. proceeding) (quoting Weekley Homes, 295 S.W.3d at 317). In re

Shipman dealt with an alleged lack of technical capability of a producing party in a

discovery dispute pertaining to electronically stored information, and the Supreme

Court concluded that ordering intrusive discovery measures requires a greater

showing than mere skepticism or bare allegations of default in a party’s discovery

duties. Shipman, 540 S.W.3d at 567-68. There must be proportionality between the

7 devices and media covered by the order and the documents sought by the requesting

party. Id. at 570 (citing In re State Farm Lloyds, 520 S.W.3d at 607 (requiring a trial

court to assess “whether any enhanced burden or expense associated with a requested

form is justified when weighed against the proportional needs of the case[]” and

establishing seven factors to be considered)). “To the extent possible, courts should

be mindful of protecting sensitive information and should choose the least intrusive

means of retrieval.” Weekley Homes, 295 S.W.3d at 316.

Here, the trial court appointed an e-discovery specialist and ordered Wilcox

to surrender electronic devices and account information in response to STVC’s

complaint that Wilcox had failed to produce emails between Wilcox and Hall in

response to requests for that information. Wilcox stated that he produced what he

had. Although Hall produced more of their communications than Wilcox produced,

the record does not establish that at the time he responded to the discovery requests

Wilcox had the same documents that Hall possessed.

STVC argues the trial court’s discovery order is justified under the standard

established by Weekley Homes because STVC demonstrated that Wilcox’s

production has been inadequate, in that he failed to produce e-mails he

acknowledged that he had, and he failed to produce electronic data specifically

requested by STVC. STVC contends it sufficiently showed that a search of Wilcox’s

electronic devices will likely recover responsive materials because Wilcox admitted

8 he was deficient in keyboard skills and he could not recall precisely what search

terms he had used. See id. at 322. As the Supreme Court explained in Shipman,

however, a party’s failure to produce merely provides the threshold for compelling

production of electronic storage devices. See 540 S.W.3d at 567. The discovery

ordered in this case lacks the proportionality and the restraint required by Shipman.

The trial court established some protocols for a third-party to search Wilcox’s ESI,

but in this business dispute, the trial court has ordered Wilcox to turn over his

electronic devices and home computer, as well as his personal account and storage

information to a third-party, and to allow intrusive discovery of personal electronic

devices that contain vast amounts of information totally unrelated to any legitimate

inquiry when it could have simply required Wilcox to run specific searches and

produce responsive data narrowly tailored to the parties’ dispute. STVC has obtained

the communications between Wilcox and Hall. Additionally, Wilcox has testified

about and provided information to STVC about communication he had with other

veterinarians relating to Wilcox leaving STVC and his possible availability to

perform surgery at other clinics.

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

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

orders appointing a specialist and compelling discovery in this case exceed the

permissible scope of discovery. We lift our order granting temporary relief and

9 conditionally grant mandamus relief. We are confident the trial court will vacate the

orders. The writ of mandamus shall issue only in the event the trial court fails to act

in accordance with this opinion.

PETITION CONDITIONALLY GRANTED.

PER CURIAM

Submitted on December 18, 2020 Opinion Delivered March 18, 2021

Before Golemon, C.J., Horton and Johnson, JJ.