345 S.W.3d 209
Tex. App.2011Background
- This mandamus action concerns a discovery order requiring Vicki Clark to produce personal computers, storage devices, and related records in a dispute with Texas Citizens Bank.
- TCB alleged Clark retained and deleted electronic communications with bank customers and engaged with a competitor regarding a local branch
- Clark had signed a Confidential Information, Non-Solicitation and Non-Competition Agreement with TCB and resigned December 21, 2010
- TCB sought communications since June 1, 2010 between Clark and any TCB customer, and all documents Clark downloaded from a TCB computer
- The trial court ordered production of Clark’s personal devices with limited privacy protections, prompting this mandamus petition
- The court held that while discovery could be compelled, safeguards were required to protect privileged and confidential information
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in ordering production of Clark's personal devices | Clark | Clark | Mandamus warranted to limit scope |
| Whether the scope and method of discovery adequately shield privileged information | TCB | TCB | Order inadequate; safeguards required |
| Whether a forensic search of personal devices is permissible under Rule 196.4 | TCB | Clark | Proceedings permissible but with protections |
| Whether the court should provide a mechanism to withhold privileged data and permit a privilege log and in camera review | TCB | Clark | Yes; require privilege screening procedures |
Key Cases Cited
- In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009) (intrusive discovery must balance benefits and burdens; least intrusive means of retrieval)
- In re Honza, 242 S.W.3d 578 (Tex. App.-Waco 2008) (protective safeguards with indexing, privilege handling, and independent screening)