Shook Partner Patrick Oot and Of Counsel Daniel Lim filed an amici brief on behalf of the U.S. Chamber of Commerce and Texas Association of Business urging the Texas Supreme Court to hold that a lower court abused its discretion by ordering State Farm Lloyds' to produce discovery documents in "native" or "near-native" form, which could cost the company millions of dollars.
State Farm could only provide documents in an alternative, "reasonably usable" format if it could prove that the production of its discovery documents in "native" or "near-native" form would be infeasible, the trial court held. Oot and Lim argue that this decision is "flatly incompatible with the Texas Rules of Civil Procedure and this Court's precedent."
The parties opposing State Farm "argue that data should nearly always be produced in 'native' or 'near-native' format because the format in which the data is created is the manner in which data is used in the 'ordinary course of business,'" the brief explains. "But this misleading claim is little more than a sleight-of-hand attempting to distract courts from looking at the entire lifecycle of electronically stored information ('ESI'). In reality, organizations frequently create ESI in one format but store and use it in a different format (often an image-based format), for countless business reasons." For an example, Oot and Lim point to the document filing system of the Texas courts, which uses PDFs despite that the filings are created in word-processing applications then converted to PDF for submission and storage.
The brief further asserts that the discovery standards constitute "wasteful and irrelevant discovery gamesmanship" by the opposing parties' counsel and urges the court to issue an order providing that "State Farm may produce responsive, relevant electronically stored information in a reasonably usable format. Static images made searchable for documents containing text constitute a reasonably usable format.”
The amici brief amends a previously submitted brief.
The case is In re State Farm Lloyds, Nos. 15-0903, 15-0905 (Tex.).