Deny and Opinion Filed December 31, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01403-CV
IN RE VERP INVESTMENT, LLC, Relator
Original Proceeding from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-03874
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Myers
Opinion by Justice Francis
VERP Investment, LLC filed this original proceeding requesting the Court to order the
trial court to vacate its order compelling VERP to allow a third-party forensic examiner to create
a mirror image of the accounting software and the supporting data on VERP’s hard drive related
to invoices prepared in connection with certain leases to which VERP and real party in interest,
Lan Hung Nguyen, are parties. The trial court’s order followed a hearing on October 20, 2014
on Nguyen’s motion to compel responses to his second request for production of documents.
The basis alleged for Nguyen’s motion to compel was VERP’s “refusal to comply with
[Nguyen’s] discovery requests,” which included a request for production of “(i) electronic data
information, (ii) the accounting software program, (iii) a forensic copy of the hard drive, and (iv)
all emails and deleted emails” related to the generation of invoices for the leases. VERP had
objected to these requests.
The trial court’s order on the motion to compel recited the trial court had “examined the
moving papers and evidence, and [had] heard the argument of counsel” and determined good
cause for its order had been shown. The trial court conducted a further hearing on October 27,
2014 on VERP’s motion to reconsider, which the trial court denied. Although VERP argues,
“[t]he Certified Record and evidence clearly demonstrate [Nguyen] did not make the necessary
showing that would enable the Court to permit direct access to VERP’s electronic storage
device,” the mandamus record does not include a transcript from either the hearing on the motion
to compel or the hearing on the motion for reconsideration and does not include a statement “that
no testimony was adduced in connection with the matter complained.” See TEX. R. APP. P.
52.7(a)(2).
“Those seeking the extraordinary remedy of mandamus must follow the applicable
procedural rules. Chief among these is the critical obligation to provide the reviewing court with
a complete and adequate record.” In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th
Dist.] 2011, orig. proceeding) (footnote omitted). Here, the failure to provide a transcript of the
evidence presented at the hearings or a statement no testimony was adduced at the hearings is
fatal to VERP’s complaint the trial court improperly ordered direct access to VERP’s computer
hard drive. “Providing access to information by ordering examination of a party's electronic
storage device is particularly intrusive and should be generally discouraged, just as permitting
open access to a party's file cabinets for general perusal would be.” In re Weekley Homes, L.P.,
295 S.W.3d 309, 317 (Tex. 2009) (orig. proceeding). To justify direct examination of a party’s
electronic storage devices, “As a threshold matter, the requesting party must show that the
responding party has somehow defaulted in its obligation to search its records and produce the
requested data.” Id. (citations omitted) “The requesting party should also show that the
responding party's production ‘has been inadequate and that a search of the opponent's
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[electronic storage device] could recover deleted relevant materials.’” Id. (citations omitted).
Bare allegations the responding party has failed to comply with its discovery duties are
insufficient. Id. At the hearing on his motion to compel, Nguyen bore a substantial burden to
demonstrate allowing direct access to VERP’s computer hard drive was appropriate. In the
absence of the transcripts of the hearings, however, we are unable to determine whether the
Nguyen made the required evidentiary showing and must presume the evidentiary record
supports the trial court’s ruling. In re Lambdin, No. 07-03-0328-CV, 2003 WL 21981975, at *2
(Tex. App.—Amarillo Aug. 20, 2003, orig. proceeding). As a result, VERP has failed to
establish that it is entitled to mandamus relief. We DENY the petition for writ of mandamus.
TEX. R. APP. P. 52.8.
141403F.P05
/Molly Francis/
MOLLY FRANCIS
JUSTICE
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in Re: VERP Investment, LLC
Combined Opinion