in Re: VERP Investment, LLC, 457 S.W.3d 255

Background

VERP Investment LLC (landlord) changed locks on three leased commercial properties after alleged nonpayment; tenant Lan Hung Nguyen sued for wrongful lockout and sought an accounting and related discovery.
Nguyen requested extensive electronic discovery including the accounting software, all data related to invoice generation, and a forensic mirror image of VERP’s computer hard drive for a specified period.
VERP objected as burdensome and argued less intrusive means existed; it later produced documents but maintained objections to imaging.
The trial court, after two non‑evidentiary hearings (no testimony introduced), ordered a third‑party forensic mirror imaging of VERP’s hard drive, broad bit‑level review (allocated, unallocated, slack, registry, etc.), and a limited disclosure log.
VERP sought mandamus relief arguing the court abused its discretion by ordering direct access without the Weekley Homes procedural/ evidentiary showing and without evidence that the search would feasibly recover relevant data.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether mandamus is appropriate	Nguyen: trial court’s order should stand; appeal is adequate only later	VERP: immediate mandamus warranted because order permits intrusive discovery and cannot be remedied on appeal	Court: mandamus appropriate because trial court abused discretion ordering direct access without required evidentiary showing
Whether VERP waived Weekley Homes protections by vague objections	Nguyen: VERP failed to assert specific objections and thus waived protections	VERP: objections and response sufficiently notified court and Nguyen of its Weekley Homes challenges	Court: VERP did not waive; its objections were sufficient to preserve challenge to imaging order
Whether Nguyen met the evidentiary threshold for direct access to opponent’s electronic devices	Nguyen: argued default and need to detect falsified/backdated invoices; relied on counsel argument	VERP: Nguyen introduced no evidence showing default, feasibility, or that imaging would recover relevant data	Court: Nguyen failed to present the necessary evidentiary showing; counsel speculation insufficient
Whether the ordered forensic protocol and expert qualifications were justified	Nguyen: forensic imaging and proposed search terms would find backdated/falsified invoices; expert CV provided but unauthenticated	VERP: challenged feasibility and lack of evidence expert was qualified for device particulars and methodology	Court: order unsupported—no evidence expert familiarity, methodology, or feasibility; trial court abused discretion

Key Cases Cited

CSR Ltd. v. Link, 925 S.W.2d 591 (Tex. 1996) (mandamus is an extraordinary remedy available in limited circumstances)
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus standard and review of trial court discretion)
In re Deere & Co., 299 S.W.3d 819 (Tex. 2009) (mandamus when trial court abuses discretion and appeal is inadequate)
In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009) (procedural and evidentiary requirements before ordering direct access to electronic devices)
In re Colonial Pipeline Co., 968 S.W.2d 938 (Tex. 1998) (ultimate purpose of discovery is to seek truth; scope rests largely with trial court)
In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (analysis on adequacy of appellate remedy for mandamus considerations)
In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004) (appeal inadequate when substantial rights may be permanently lost)
In re Dana Corp., 138 S.W.3d 298 (Tex. 2004) (discovery orders reviewable by mandamus when appellate remedy inadequate)