e-Lessons Learned

­­­­­­­­­­­­­­­­­­In In re Stern, Virgie Arthur, mother of the late Anna Nicole Smith, alleged that Howard K. Stern, Smith’s former attorney, and others in the media (particularly television and internet gossip programs) had engaged in a conspiratorial effort to defame her and harm her efforts to maintain custody and visitation rights of Smith’s daughter. Arthur challenged Stern’s assertion that he was father to Smith’s newborn daughter, thereby causing Stern to engage in a conspiracy in which his sister, Bonnie, as well as additional parties (Nelda Turner, Lyndal Harrington and Theresa Stephens) found “dirt” on Arthur and then posted it on the internet. Further, Stern and his alleged conspirators had provided gossip website TMZ with a tape and transcript of an interview in which Smith accused Arthur of “being complicit in child abuse” committed against Smith when she was a child.

Arthur’s fishing expedition began by serving Stern with a request for production that called for all documents generated between he and the thirty eight other contacts implicated in the indictment during a period ranging from September 2006 to the service date of August 1, 2008. Stern, a California-based attorney, responded by first denying that Texas had personal jurisdiction against him, and also asserting that Arthur’s production requests were “outside the scope of jurisdictional discovery, violated attorney-client and work product privileges, were overbroad, and were irrelevant” and filed a trial brief in support of his special appearance. In early December, however, Stern produced non-privileged documents between himself and his co-defendants relating to Arthur that were produced between October 2006 and March 2008. Stern also filed an affidavit affirming that he had produced all non-protected, responsive documents and that his computer’s hard drive did not contain any emails because he uses a web-based email server (Yahoo! Business).

In a May 2009 hearing, the Texas trial court hearing the case ordered production of communications between Stern and co-defendants that were not privileged or of a purely personal nature and occurred between September 20, 2006 and March 14, 2008. The trial court also appointed a special master (Craig Ball) to conduct an independent examination of Stern’s computer’s hard drive. Stern filed mandamus to determine whether the trial court erred in its order of production while the issue of the special appearance was pending and its appointment of a special master to conduct a forensic examination of Stern’s computer’s hard drive.

With respect to compulsion of discovery while a determination of special appearance is still pending, the court looked to both Texas’s statutory authority and relevant case law on the issue and determined that Texas Rule of Civil Procedure 120a(3) authorizes granting a discovery by a party opposing a special appearance prior to a determinative ruling with respect to the facts “essential to justify his opposition.” Applied here, the extremely broad production Arthur sought was far beyond what was necessary to establish jurisdiction over Stern. Critically, Arthur could not show evidence that what she sought in production would grant the court jurisdiction over Stern. Finally, invoking a conspiracy charge against Stern to establish personal jurisdiction is inappropriate because the court’s inquiry is restricted to whether defendant himself “purposefully established minimum contacts such as would satisfy due process” and thus was not an applicable ground on which to compel production of Stern’s computer records.

The court also found that the trial court erred in the scope of discovery granted and in the appointment of a special master and his examination of the computer hard drive. Citing Texas Rules of Civil Procedure 192 and 193, the court stated that courts are encouraged to limit discovery when the burden or expense may outweigh any likely benefit of production. Further, Texas Rule of Civil Procedure 196, governing electronic discovery, falls within this limitation. In the instance of compelling examination of a party’s hard drive, the Texas Supreme Court has stated that courts should do so only reluctantly as examining a hard drive is akin to “allowing open access to a party’s file cabinets.” As such, the trial court’s order was not narrowly tailored enough and granted essentially “unrestricted production from Stern’s hard drive” and thus resembled an impermissible “fishing expedition”.

Further, on the issue of the special master and his access to the hard drive, the court found the trial court’s decision an abuse of discretion because there had been no showing that the hard drive would provide data allowing jurisdiction over Stern. Arthur had not demonstrated a direct relationship between the search of Stern’s hard drive and how this would establish the court’s jurisdiction over Stern. Stern had said that his hard drive did not contain emails and Arthur had shown nothing to contradict this. Thus, the trial court was relying on Arthur’s bare allegations in granting the discovery order. Additionally, the trial court had not followed the state’s procedures as set forth in Texas Rule of Civil Procedure 171 governing appointment of a special master and that the failure to do so in a mandamus action constitutes an abuse of discretion.

Article posted on June 8, 2011 at 5:18 AM |              More... 
Tagged as: Discoverability, Good Faith, Production of Data.
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