Texas Appellate Court Vacates Second Order for Special E-Discovery Master

In In re Howard K. Stern [pdf], No. 01-09-00438-CV (Ct. App. Tx. Jul. 12, 2010), Judge Evelyn V. Keyes on behalf of the Court of Appeals of Texas, First Division, Houston, directed the trial court to vacate its prior order requiring Stern to produce his computer hard drive to a special master for forensic examination. The opinion is similar to an earlier ruling related to a co-defendant. See In re Art Harris.

This defamation case brought by the late Annie Nicole Smith’s mother, Virgie Arthur, against Howard K. Stern, Larry Birkhead, Harvey Levin, TMZ, Art Harris, and others. In discovery, Arthur served Stern with a production request seeking emails for a period of “September 2006 to present” between Stern and the owners of 39 different email addresses. Stern objected to the request as overly broad, noting that his counsel was one of the email addressees, but did produced a limited amount of emails responsive to his personal jurisdiction challenge. Arthur moved to compel Stern to submit his “computers, external hard drives, jump drives, and other such electronic media” to a forensic examiner appointed by the court. The court, without a hearing on the issue, granted Arthur’s motion to compel, ordering him to produce certain emails and to submit his electronic information systems to Craig Ball, who the court appointed as a special master.

The court of appeals vacated the trial court’s order finding the court abused its discretion as Arthur presented no evidence that further discovery (i.e., all Stern emails) was necessary to rule on Stern’s special appearance. Moreover, the court of appeals ruled the trial court’s ordered discovery and forensic examination amounted to an impermissible fishing expedition.

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