in Re Stephen Hall

• Court: Court of Appeals of Texas
• Decided: March 5, 2019
• Docket: 03-19-00110-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00110-CV

In re Stephen Hall

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

MEMORANDUM OPINION

Relator Hall has filed a petition for writ of mandamus and an emergency motion

for temporary relief. Hall challenges the trial court’s February 14, 2019 order granting in part

real party in interest Austin Eye Clinic’s motion for sanctions for spoliation of evidence. The

order required Hall to present his electronic devices on or before February 20, 2019, for a

forensic investigation pursuant to a court-ordered protocol. The protocol requires the forensic

consultant to use search terms to identify relevant files and data and to exclude potentially

privileged communications, and it provides a mechanism for Hall’s counsel to conduct

a privilege review of the documents that the consultant identifies as potentially relevant

before the documents are produced to Austin Eye’s counsel. See In re Weekley Homes, L.P.,

295 S.W.3d 309, 318-19 (Tex. 2009) (orig. proceeding) (following federal case law advising

courts ordering access to electronic storage devices to impose reasonable limits on production by

establishing protocols for forensic investigation to restrict searches by using search terms and to

address privilege, privacy, and confidentiality concerns). Austin Eye asserts defamation and business-disparagement claims in the underlying case, based on allegations that Hall posted

derogatory online reviews and filed frivolous claims with various oversight agencies (Hall

asserts he filed those claims online). Thus, Hall’s electronic devices have a direct relationship to

Austin Eye’s claims. See id. at 319, 321. Hall’s affidavit states that he deleted most of the

accounts that he used when posting online reviews about Austin Eye and that he returned his

iPhone to his service provider after the underlying suit was filed. Accordingly, the trial court did

not abuse its discretion by concluding that Hall had a duty to preserve evidence and breached

that duty or by imposing an appropriate remedy. See Brookshire Bros., Ltd. v. Aldridge,

438 S.W.3d 9, 20-21 (Tex. 2014). Having reviewed the petition and the record provided, we

deny the petition for writ of mandamus and the emergency motion for temporary relief. See Tex.

R. App. P. 52.8(a), R. 52.10.

__________________________________________ Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Kelly and Smith

Filed: March 5, 2019