ACCEPTED
05-18-00582-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/21/2018 12:16 PM
LISA MATZ
CLERK
NO. 05-18-00582-CV
FILED IN
IN THE COURT OF APPEALS 5th COURT OF APPEALS
FIFTH APPELLATE DISTRICT OF TEXAS AT DALLAS, TEXAS DALLAS, TEXAS
5/21/2018 12:16:27 PM
LISA MATZ
Clerk
In re Toyota Motor Sales, U.S.A. Inc., and
Toyota Motor Corporation
Relators
Mandamus from the 134th District Court, Dallas County, Texas
Cause No. DC-16-15269
Hon. Dale Tillery, Presiding
REAL PARTIES IN INTEREST’S MOTION TO RECONSIDER
ORDER GRANTING
TOYOTA’S EMERGENCY REQUEST FOR STAY
LAW OFFICES OF FRANK L. BRANSON, P.C.
Frank L. Branson
State Bar No. 02899000
Chip Brooker
State Bar No. 24045558
Eric T. Stahl
State Bar No. 00794685
etstahl@flbranson.com
4514 Cole Ave., Suite 1800
Dallas, Texas 75205
(214) 522-0200
(214) 521-5485 (fax)
Attorneys for Benjamin Reavis et al.,
Real Parties in Interest
The Plaintiffs, Benjamin and Kristi Reavis, respectfully oppose the
Emergency Request for Stay filed by Petitioners Toyota Motor Sales and Toyota
Motor Corporation (collectively, “Toyota”), ask the Court to consider this
Response and deny Toyota’s Motion, and, in support, would show as follows:
1. This matter is specially set for trial on July 23, 2018, in the 134th
District Court of Dallas County, Texas.
2. As reflected in the trial court’s May 4 Order, the discovery cutoff has
been set for June 11, 2018.
3. Toyota is challenging a discovery order that was entered on May 4,
2018. Despite its current cries of “EMERGENCY,” Toyota delayed until the end of
the day on Friday, May 18, to even file a petition seeking mandamus relief.
4. Even further, Toyota waited until Monday, May 21, before
submitting any argument to the Court of Appeals explaining its purported
“emergency” and asking for an emergency stay.
5. Even to an outside observer, Toyota’s request must smack of
intentional delay.
6. The May 4 Order is designed to facilitate the parties’ efficient search
of Toyota databases for electronic documents and to do so timely, in connection
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with the current schedule. Yet, the late-ness of Toyota’s Petition is designed to
disrupt that schedule.
7. The late-ness of Toyota’s requested relief should be further
considered in light of the low likelihood of Toyota’s success on the merits of its
mandamus petition. The subject of the petition – the trial court’s discovery plan
governing the production of electronic documents – is the sort of regularly-arising
discovery issue that is routinely decided by trial courts. Because trial courts are
given broad discretion to oversee the conduct of discovery, the movant’s burden
in a mandamus proceeding like this “is a heavy one.” In re CSX Corp., 124 S.W.3d
149, 151 (Tex. 2003) (orig. proceeding).
8. In particular, when discovery involves searches for ESI, trial courts
routinely are called upon to develop an appropriate ESI protocol. That process
necessarily involves (1) identifying the databases or, even better, the portions of
databases that will be searched, (2) determining appropriate search terms, and
(3) developing a process by which responsive documents can be identified,
reviewed, and (if appropriate) produced.
9. As will be more fully set out in the Reavises’ response, the May 4
Order performs these tasks intelligently, not arbitrarily:
• First, it identifies the databases that will generally be searched.
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• Second, it establishes a rational process for narrowing the scope of
searches by requiring Toyota (a) to provide information regarding the
organizational schema of the databases (i.e., their folder structure
and/or a “table of contents,” depending on how a particular
database is organized) so that the search can be narrowed to just
those portions of the databases that are reasonably calculated to
lead to the discovery of admissible evidence and (b) to provide the
“search syntax” of the databases so that the parties can intelligently
structure appropriate searches. It would hardly make sense to
compel Plaintiffs to guess what the search syntax might be before
proposing search terms.
• Third, the May 4 Order allows parties to formulate search terms
which will facilitate the search of documents responsive to the scope
of discovery previously established by the trial court in its November
Order. This process is not one-sided. Either party is allowed to seek a
ruling from the trial court, at any time, that a proposed search would
be inappropriate. The May 4 Order also allows the parties to refine
searches, as necessary. For instance, if the results of a particular
search show that it was crafted either too narrowly or too broadly to
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be useful, the May 4 Order rationally allows the parties to
reformulate the search so that the review and production process
will be more efficient.
• Finally, the May 4 Order provides for a reasonable process for
reviewing and, if appropriate, producing responsive documents.1
10. Toyota’s challenges to the May 4 Order merely attempt to invoke
familiar buzzwords – alleging that the Order somehow allows “direct access” to
Toyota’s databases and that it is facially “overbroad” – hoping that the mere
utterance of the proper words will justify upending the trial court’s discovery
schedule, just as Toyota was able to accomplish in its previous mandamus (that
was subsequently denied after a stay had been entered). See In re Toyota Motor
Corp., No. 05-17-01293-CV (Tex. App.—Dallas Nov. 21, 2017, orig. proceeding).
11. For example, Toyota’s principal argument is that the May 4 Order
supposedly allows “direct access.” However, the May 4 Order provides nothing of
the sort. “Direct access” refers to giving physical possession of a document or
electronic device to an opposing party. See In re Weekley Homes, 295 S.W.3d 309,
1 Toyota appears to complain that the May 4 Order provides it with insufficient time in
which to review documents for “privilege,” Motion at 3, but that is a complaint that Toyota has
never asserted before, and the objective grounds for the complaint, if any, have never been
articulated (even throughout Toyota’s mandamus papers).
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313 (Tex. 2009) (reviewing “whether the trial court abused its discretion by
allowing forensic experts direct access to Weekley’s Employees’ electronic
storage devices for imaging and searching”); id. at 318 & n.8 (discussing cases
where “direct access” to computer hardware was or was not allowed). Here,
however, the trial court expressly (and purposefully) settled on a protocol that
would not provide direct access. (MR 296-97, 300-03).
12. Toyota’s motive for misrepresenting the trial court’s Order is easy to
see. Simply put, “direct access” is one of those buzzwords that Toyota hopes to
tie into. See Emergency Motion for Temporary Relief at 5 (suggesting that this
case is “virtually indistinguishable” from In re VERP, a case involving “direct
access”). But In re VERP was a case that actually involved “direct access” – there,
this Court was reviewing a trial court’s “order compelling VERP to turn over its
computer hard drive.” In re VERP Invest., LLC, No. 05-15-00023-CV, slip op. at 1
(Tex. App.—Dallas Feb. 17, 2015, orig. proceeding). Here, the trial court went out
of its way to resist any suggestion that Toyota would have to relinquish control of
its hardware. (MR 296-97, 300-03).
13. Toyota also purports to challenge the scope of discovery allowed by
the May 4 Order, but the May 4 Order does not enlarge the scope of discovery at
all. Rather, it merely requires the search for, and production of, ESI that is
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responsive to the scope of discovery that had been previously ordered, back in
November 2017. (See MR 12). While Toyota previously sought mandamus relief
concerning the scope of that November 2017 Order, that request was properly
denied. In re Toyota Motor Corp., No. 05-17-01293-CV (Tex. App.—Dallas Nov. 21,
2017, orig. proceeding).2
14. While Toyota re-asserts those challenges through this mandamus, its
challenges do not nearly establish either (1) a clear abuse of discretion or the
violation of any duty imposed by law or (2) the absence of a clear and adequate
remedy at law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig.
proceeding).
15. This is especially the case since, with respect to ESI, parties are
ordinarily expected to voluntarily “share relevant information concerning
electronic systems and storage methodologies so that agreements regarding
protocols may be reached.” In re Weekley Homes, 295 S.W.3d 309, 321 (Tex.
2009). In turn, trial courts are specifically expected to oversee this process, and,
ultimately, “to craft discovery orders” to facilitate these efforts, id., which is
precisely what the trial court has done here.
2 Toyota also suggests that the May 4 Order requires Toyota to translate its document
production into English. Not true. The May 4 Order only requires the translation of specific
documents – reflecting the organizational schema of Toyota’s databases – so that the parties
and the Court can intelligently oversee Toyota’s ESI searches.
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16. Unfortunately, Toyota’s strategy in this case has been to do whatever
it can to “run out the clock,” hoping to cut off Plaintiffs’ discovery efforts at the
knees by resisting, resisting, resisting, and then saying, “Sorry, but time’s up.” The
substance and timing of this mandamus petition illustrate that strategy well.
17. Since granting Toyota’s request is supported by neither the law nor
the equities of the current mandamus petition, the Reavises respectfully request
that the Motion for an Emergency Stay be denied.
PRAYER
WHEREFORE, the real parties in interest respectfully pray that the Court lift
the Emergency Stay on the May 4 Order, deny Relators’ requested relief, and
provide the real parties in interest such other relief to which they may be entitled.
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Respectfully submitted,
LAW OFFICES OF FRANK L. BRANSON P.C.
/s/ Eric Stahl
Eric T. Stahl
State Bar No. 00794685
18th Floor, Highland Park Place
4514 Cole Avenue
Dallas, TX 75205-4185
Telephone: (214) 522-0200
Facsimile: (214) 521-5485
ATTORNEYS FOR THE REAVISES,
REAL PARTIES IN INTEREST
CERTIFICATE OF SERVICE
I certify that the foregoing document was electronically filed with the Clerk
of the Court and served using the Court’s electronic case filing system on May 21,
2018.
/s/ Eric Stahl
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