                                                                                 ACCEPTED
                                                                            05-15-00023-CV
                      05-15-00023-CV                              FIFTH COURT OF APPEALS
                                                                            DALLAS, TEXAS
                                                                        1/9/2015 9:30:51 AM
                                                                                 LISA MATZ
                                                                                     CLERK

                      No. _____________
_____________________________________________________________
                                                       FILED IN
                                                5th COURT OF APPEALS
                 IN THE COURT OF APPEALS            DALLAS, TEXAS
            FOR THE FIFTH DISTRICT OF TEXAS1/9/2015 9:30:51 AM
                       DALLAS, TEXAS                  LISA MATZ
                                                        Clerk
_____________________________________________________________

                            In Re
                     VERP Investment, LLC,
                            Relator
_____________________________________________________________

                  Original Proceeding from the
                  134th Judicial District Court
                     Dallas County, Texas
_____________________________________________________________

      RELATOR’S PETITION FOR WRIT OF MANDAMUS
_____________________________________________________________

                             FRIEDMAN & FEIGER, L.L.P.
                             Lawrence J. Friedman, Esq.
                             State Bar No. 07469300
                             lfriedman@fflawoffice.com
                             James S. Bell
                             State Bar No. 24049314
                             jbell@fflawoffice.com
                             Jason H. Friedman
                             State Bar No. 24059784
                             jhfriedman@fflawoffice.com
                             5301 Spring Valley Road, Suite 200
                             Dallas, Texas 75254
                             (972) 788-1400 (Telephone)
                             (972) 788-2667 (Telecopier)
                             ATTORNEYS FOR RELATOR


                               i
                  IDENTITY OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. P. 55.2(a), Relator submits the following list of the
names and last known addresses of all parties to the trial court's order, and their
counsel:

Relator:

VERP, Investment LLC

Respondent:

The Honorable Dale Tillery
134th Judicial District Court
600 Commerce Street, Suite 650
Dallas, Texas 75202

Real Parties in Interest:

Lan Hung Nguyen, Individually
and d/b/a Dance With Me Studio

Counsel for the Relator

Lawrence J. Friedman,
James S. Bell
Jason H. Friedman
Friedman & Feiger, L.L.P.
5301 Spring Valley Road, Suite 200
Dallas, Texas 75254
(972) 788-1400 (Telephone)
(972) 788-2667 (Telecopier)
lfriedman@fflawoffice.com
jbell@fflawoffice.com
jhfriedman@fflawoffice.com

Counsel for the Real Parties in Interest

                                         ii
Bruce E. Turner,
Bennett Weston LaJone & Turner PC
1603 LBJ Freeway, Suite 280
Dallas, Texas 75234
Telephone: (972) 862-2332
Facsimile: (214) 373-2570
Email: bturner@bennettweston.com




                                    iii
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ..........................................................................................iv

TABLE OF AUTHORITIES ....................................................................................vi

STATEMENT OF THE CASE .............................................................................. viii

STATEMENT OF JURISDICTION.......................................................................... x

ISSUE PRESENTED .................................................................................................x

         Whether the 134th Court’s Order, dated October 27, 2014, granting
         Plaintiff’s Motion to Compel, constitutes an abuse of discretion where
         Respondent permitted a consultant of Real Party-in-Interest direct access to
         VERP’s electronic storage devices for imaging and searching.

STATEMENT OF THE FACTS ............................................................................... 1

BACKGROUND .......................................................................................................1

 ARGUMENT……………………………………………………………………...6

         STANDARD OF REVIEW - MANDAMUS.................................................. 6

         THRESHOLD    REQUIREMENT      FOR            COMPELLING                       THE
         PRODUCTION
         OF ELECTRONIC STORAGE DEVICE ....................................................... 8

CONCLUSION ........................................................................................................12

PRAYER ..................................................................................................................12

CERTIFICATE OF SERVICE ................................................................................12


                                                            iv
VERIFICATION ......................................................................................................14




                                                         v
                                       TABLE OF AUTHORITIES

CASES

Baker v. Goldsmith, 582 S.W.2d 404
(Tex.1979)..………………………………………………………………………...7
Berg v. AMF Inc., 29 S.W.3d 212, 219 (Tex. App. - Houston [14th Dist.]
2000, no pet.)……………………………………………………………………….7

Borden, Inc. v. Valdez, 773S.W.2d 718
(Tex. App.—Corpus Christi 1989, no writ)…………………………………...…6, 7

Downer v. Aquamarine Operators, Inc.,701 S.W.2d 238
(Tex. 1985) .................................................................................................................6

In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006)………………………………….7

In re Dana Corp., 138 S.W.3d 298
(Tex. 2004) (orig. proceeding)(per curiam) ............................................................... 6

In re Does 1-10, 242 S.W.3d 805
(Tex. App.—Texarkana 2008, orig. proceeding)…………………………………..7

In re Gist, 1998 WL 355251
(Tex. App.—San Antonio 1998, orig. proceeding)………………………………...7

In re Honza, 242 S.W.3d 578
(Tex. App. Waco 2008)............................................................................................11

In re Office of Att’y Gen., 276 S.W.3d 611, 681 (Tex. App.—Houston [1st Dist.]
2008, orig. proceeding)…………………………………………………………..7, 8

In re Prudential Ins. Co., 148 S.W.3d 124
(Tex.2004)………………..………………………………………………….…..7,8

                                                             vi
In re State ex rel. Robinson, 16 S.W.3d 115
(Tex. App.—Houston [14th Dist.] 2002, orig. proceeding)…………………………6

In re Unitech Elevator Servs., 178 S.W.3d 53 (Tex. App.—Houston [1st Dist.]
2005, orig. proceeding)…………………………………………..…………………7

In re Weekley Homes, L.P., 295 S.W. 3d 309
(Tex.2009)………………..……………………..…………………………........ 8, 9

Walker v. Packer, 827 S.W.2d 833
(Tex. 1992) ..............................................................................................................6

STATUTES

TEX. CONST. ART. V. §6. ...........................................................................................vi

TEX. GOV’T. CODE. §22.221(a). ................................................................................vi

RULES

TEX. R. APP. P. 52......................................................................................................vi

TEX. R. APP. P. 55.2(a) ............................................................................................. ii




                                                           vii
                         STATEMENT OF THE CASE

      Nature of the case: This original proceeding arises out of Cause No. DC-14-

03874, styled Lan Hung Nguyen Individually and d/b/a Dance with Me Studio v.

VERP Investment, LLC, Duong Vu Trieu Truong, Chi Ly, Ken Nguyen and CD

Midway LLC in the 134th Judicial District Court, Dallas County, Texas. The

underlying suit is an action for, inter alia, breach of contract, wrongful lockout,

and other various claims stemming from Real Party-in-Interests’ eviction from the

leased premises. Respondent is the 134th Judicial District Court of Dallas County,

Texas (the “Court” and/or “Respondent”).

      At issue is whether the Court abused its discretion in granting Plaintiff’s

Motion to Compel thereby allowing a consultant of Real Party-in-Interest Lan Han

Nguyen direct access to Relator, VERP Investments, LLC’s electronic storage

devices for imaging and searching. Real Party-in-Interest, Lan Han Nguyen

Individually, and d/b/a Dance With Me Studio (hereinafter referred to as “Real

Party-in-Interest”) served his Second Request for Production to Relator, VERP,

Investment, LLC (hereinafter referred to as “VERP”) on August 22, 2014. On

September 9, 2014, VERP served its Objections and Responses to Plaintiff’s

Second Request for Production. Real Party-in-Interest then filed a Motion to

Compel on October 6, 2014. A hearing was held on October 20, 2014 on Real

                                        viii
Party-in-Interest’s Motion to Compel. On October 20, 2014 the Court granted

Plaintiff’s Motion to Compel. On October 22, 2014, VERP filed an Emergency

Motion to Reconsider. A hearing was held on October 27, 2014 on VERP’s

Emergency Motion to Reconsider. On October 27, 2014, the Court entered an

Order Granting Plaintiff’s Motion to Compel and an Order Denying Defendant’s

Motion to Reconsider.

      The trial court erred in granting Real Party-in-Interest’s Motion to Compel.

The Certified Record and evidence clearly demonstrates that Real Party-in-Interest

did not make the necessary showing that would enable the Court to permit direct

access to VERP’s electronic storage device. Specifically, Real Party-in-Interest

failed to show: 1) that VERP may be withholding, concealing, or destroying

discoverable electronic information; 2) that VERP has not adequately produced the

requested data; 3) the retrieval of the requested data is feasible; 4) that any

relationship exists—let alone a direct relationship—between VERP’s computer

hard drive and the claim itself; and 5) there is a reasonable likelihood that the

proposed search methodology will yield the information sought.

      VERP seeks a writ of mandamus from this Honorable Court ordering

Respondent to: (a) vacate the Order to Compel, (b) deny Real Party-in-Interest’s



                                        ix
Motion to Compel in its entirety; and (c) grant all other relief to which VERP may

show itself to be justly entitled.

                           STATEMENT OF JURISDICTION

      This Court has jurisdiction to issue a writ of mandamus under Tex. Const.

art. V, §6, Texas Government Code §22.221(a), and Texas Rule of Appellate

Procedure 52.

                                ISSUE PRESENTED

             Issue 1:     Whether Respondent’s Order, dated October 27, 2014,

granting Plaintiff’s Motion to Compel, constitutes an abuse of discretion where

Respondent permitted a consultant of Real Party-in-Interest direct access to

VERP’s electronic storage devices for imaging and searching.




                                        x
                            STATEMENT OF THE FACTS

BACKGROUND

      This lawsuit arises from certain lease agreements entered into between

VERP and Real-Party-in-Interest. [SR, Volume 1, Tab 7, Pages 59-73 Defendants’

Original Counter-Claims and Third Party Claims]. At issue in the underlying

lawsuit, among other things, is the interpretation of the lease agreements in dispute,

and whether Real Party-in-Interest was wrongfully locked out from the leased

premises in December 2013. [SR, Volume 1, Tab 8, Pages 74-109, Plaintiff’s

Original Petition Request for Temporary Injunction and Request for Disclosures]

      From February 2013 to June 2013, VERP and Real Party-in-Interest entered

into three separate lease agreements for premises located at Walnut Street Mall,

9750 Walnut Street, Dallas, Texas 75243. [SR, Volume 1, Tab 7, Pages 59-73

Defendants’ Original Counter-Claims and Third Party Claims]. Each lease

agreement had similar terms requiring among other things: the payment of rent at

the beginning of each month, the payment of a $5,000.00 security deposit, Real

Party-in-Interest to procure all permits and licenses for the transaction of business

in the premises, and Real Party-in-Interest to maintain insurance. [SR, Volume 1,

Tab 7, Pages 59-73 Defendants’ Original Counter-Claims and Third Party Claims].

      Among other breaches of his lease agreements, Real Party-in-Interest

continually failed to make his rent payments for the spaces. [SR, Volume 1, Tab 7,
                                          1
Pages 59-73 Defendants’ Original Counter-Claims and Third Party Claims]. VERP

continued to demand payment month after month. [SR, Volume 1, Tab 7, Pages

59-73 Defendants’ Original Counter-Claims and Third Party Claims]. Finally, after

ten months of receiving the run around from Real Party-in-Interest, VERP issued,

and Real Party-in-Interest received, written notice of defaults for the premises on

December 19, 2013 and again on December 24, 2014. Real Party-in-Interest was

locked out on December 30, 2013. [SR, Volume 1, Tab 7, Pages 59-73

Defendants’ Original Counter-Claims and Third Party Claims].

      On or about April 10, 2014, Real Party-in-Interest filed the pending

litigation against VERP. [SR, Volume 1, Tab 8, Pages 74-109, Plaintiff’s Original

Petition Request for Temporary Injunction and Request for Disclosures].

      On or about April 17, 2014, Real Party-in-Interest served his First Request

for Production on VERP. VERP produced over 400 documents in response to Real

Party-in-Interest’s First Request for Production, including invoices regarding the

three leases.

      On or about August 22, 2014, Real Party-in-Interest served VERP with his

Second Request for Production. [SR, Vol. 1, Tab 4, Pages 27-34, Defendant VERP

Investment, LLC’s Emergency Motion to Reconsider]. Real Party-in-Interest’s

requests sought among other things electronic information related to the invoices

previously produced and a forensic image of VERP’s entire hard drive. [SR, Vol.
                                        2
1, Tab 4, Pages 27-34, Defendant VERP Investment, LLC’s Emergency Motion to

Reconsider]. Specifically Real Party-in-Interest requested the following:

      REQUEST FOR PRODUCTION NO. 1: Please produce the electronic
      information related to the generation of invoices from you to Plaintiff for
      suites 114, 116 and 124 of the Walnut Street Mall located at 9750 Walnut
      Street, Dallas, Texas 75234 including the electronic information related to
      the accounting software/program used by the company for its accounting
      purposes.

      REQUEST FOR PRODUCTION NO. 2: Please produce all electronic
      data related to the generation of such invoices from the accounting
      software/program utilized to generate the invoices from you to Plaintiff
      specifically for the lease on Dance with Me Studios, Suite 114, of the
      Walnut Street Mall, located at 9750 Walnut Street, Dallas, Texas 75243.

      REQUEST FOR PRODUCTION NO. 3: Please produce from the
      accounting software/ program utilized to generate the invoices from you to
      Plaintiff specifically for the lease on La Nuit Cafe, Suite 116, of the Walnut
      Street Mall, located at 9750 Walnut Street, Dallas, Texas 75243 all
      electronic data files related to such invoices in the following form: on
      CD/DVD or comparable sized flash media with a notation identifying the
      computer program (including version identification) necessary to access the
      information.

      REQUEST FOR PRODUCTION NO. 4: Please produce from the
      accounting software/ program utilized to generate the invoices from you to
      Plaintiff specifically for the lease on Loc Hy Restaurant, Suite 124, of the
      Walnut Street Mall, located at 9750 Walnut Street, Dallas, Texas 75243 all
      electronic data related to such invoices.

      REQUEST FOR PRODUCTION NO. 5: Please produce a forensic copy
      of the computer hard drive from the computer(s) used to generate the

                                         3
      invoices from you to Plaintiff specifically for the lease on Dance with Me
      Studios, Suite 114, of the Walnut Street Mall, located at 9750 Walnut Street,
      Dallas, Texas 75243 in the following form: on a same size or comparable
      sized external hard drive. A qualified forensic computer specialist agreed
      upon by the parties will be made available to take the forensic copy and hold
      it in trust for search based on search terms to be determined by the parties or,
      if necessary, by the court.

      REQUEST FOR PRODUCTION NO.6: Please produce a forensic copy of
      the computer hard drive from the computer(s) used to generate the invoices
      from you to Plaintiff specifically for the lease on La Nuit Cafe, Suite 116, of
      the Walnut Street Mall, located at 9750 Walnut Street, Dallas, Texas 75243
      in the following form: on a same size or comparable sized external hard
      drive. A qualified forensic computer specialist agreed upon by the parties
      will be made available to take the forensic copy and hold it in trust for
      search based on search terms to be determined by the parties or, if necessary,
      by the court. [SR, Vol. 1, Tab 4, Pages 27-34, Defendant VERP Investment,
      LLC’s Emergency Motion to Reconsider].

      VERP objected to the requests. [SR, Vol. 1, Tab 4, Pages 27-34, Defendant

VERP Investment, LLC’s Emergency Motion to Reconsider]. In response to

VERP’s objections, on or about October 6, 2014, Real Party-in-Interest filed a

Motion to Compel requesting that the Court order VERP to produce all electronic

data information, accounting software program, a forensic copy of the Defendant’s

hard drive and all emails and deleted emails. [SR, Vol. 1, Tab 6, Pages 54-57

Motion to Compel Responses to Plaintiff’s Second Request for Production]. In his

Motion to Compel, Real Party-in-Interest cited no authority supporting his request

for direct access to VERP’s hard drive. [SR, Vol. 1, Tab 6, Pages 54-57 Motion to
                                          4
Compel Responses to Plaintiff’s Second Request for Production]. Additionally,

Real Party-in-Interest made no claim that VERP may be withholding, concealing,

or destroying discoverable electronic information. [SR, Vol. 1, Tab 6, Pages 54-57

Motion to Compel Responses to Plaintiff’s Second Request for Production]. In

fact, nowhere in Real Party-in-Interest’s Request, Motion to Compel, or any

subsequent pleadings does he state with any specificity the information he seeks

from VERP’s hard drive or provide a legitimate explanation as to why it may only

be obtained through direct access to VERP’s hard drive. [SR, Vol. 1, Tab 5, Pages

49-53, Motion to Compel Responses to Plaintiff’s Second Request for Production;

Tab 3, Pages 7-26, Response to Emergency Motion to Reconsider]. The closest

Real Party-in-Interest comes to doing so is in his Response to VERP’s Emergency

Motion for Reconsideration in which he provides this vague justification, “Plaintiff

Nguyen needs a copy of the hard drive to determine if the invoices were first

produced in 2014 and without the hard drive that information cannot be shown.”

[SR, Vol. 1, Tab 5, Pages 49-53, Motion to Compel Responses to Plaintiff’s

Second Request for Production; Tab 3, Pages 7-26, Response to Emergency

Motion to Reconsider].

      A hearing was held on October 20, 2014 on Real Party-in-Interest’s Motion

to Compel. At this hearing no testimony was adduced in connection with the

matter complained. On October 22, 2014, VERP filed an Emergency Motion to
                                         5
Reconsider. A hearing was held on October 27, 2014 on VERP’s Emergency

Motion to Reconsider. [SR, Vol. 1, Tab 9, Pages 110-119, Defendant VERP

Investment, LLC’s Emergency Motion to Reconsider Hearing Reporter’s Record].

At the hearing, Plaintiff did not provide any more support for compelling

production of Defendant VERP’s electronic storage device. [SR, Vol. 1, Tab 9,

Pages 110-119, Defendant VERP Investment, LLC’s Emergency Motion to

Reconsider Hearing Reporter’s Record].         On October 27, 2014, Respondent

entered an Order Denying Defendant’s Motion to Reconsider and entered an Order

Granting Plaintiff’s Motion to Compel.

                                   ARGUMENT

   A. STANDARD OF REVIEW – MANDAMUS

      Mandamus is an extraordinary writ that should be issued only when the trial

court has clearly abused its discretion and there is no adequate remedy by appeal.

Walker v. Packer, 827 S.W.2d 833, 839-740 (Tex. 1992). A trial court abuses its

discretion when it acts without reference to any guiding rules or principles or when

it acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators,

Inc.,701 S.W.2d 238, 241-242 (Tex. 1985).

      Because there is no adequate remedy by appeal, mandamus relief is

appropriate to correct a trial court’s clear abuse of discretion in allowing discovery

that is not in accordance with the Texas Rules of Civil Procedure. In re Dana
                                          6
Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding) per curiam); see also

In re State ex rel. Robinson, 16 S.W.3d 115, 118-19 (Tex. App.—Houston [14th

Dist.] 2002, orig. proceeding); Borden, Inc. v. Valdez, 773S.W.2d 718, 720 (Tex.

App.—Corpus Christi 1989, no writ) (court issued mandamus to correct a trial

court’s order regarding the location of a deposition); In re Gist, 1998 WL 355251

(Tex. App.—San Antonio 1998, orig. proceeding) (court issued mandamus to

correct a trial court’s order requiring more than thirty (30) interrogatories where

there was no finding that “justice so requires”); In re Does 1-10, 242 S.W.3d 805

(Tex. App.—Texarkana 2008, orig. proceeding)(court issued mandamus to correct

a trial court’s order regarding the production of information where there was no

proper outstanding discovery request).

      Determining whether an appellate remedy is adequate involves balancing

“practical and prudential” considerations, such as the inevitability of reversal and

the waste of judicial resources on a proceeding. See In re Prudential Ins. Co., 148

S.W.3d 124, 136 (Tex. 2004); In re Unitech Elevator Servs., 178 S.W.3d 53, 64-65

(Tex. App.—Houston [1st Dist.] 2005, orig. proceeding).

      Although an appellate court may not decide disputed facts in a mandamus

proceeding, In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006), a trial court’s

determination regarding whether a party established a proposition by prima facie

proof is a question of law reviewable de novo. Baker v. Goldsmith, 582 S.W.2d
                                         7
404, 408-09 (Tex. 1979) (appeal from a denial of bill of review); Berg v. AMF Inc.,

29 S.W.3d 212, 219 (Tex. App. - Houston [14th Dist.] 2000, no pet.) (appeal from

forum non conveniens dismissal); In re Office of Att’y Gen., 276 S.W.3d 611, 681

(Tex. App.—Houston [1st Dist.] 2008, orig. proceeding) (original proceeding with

regard to orders granting a bill of review and vacating a default judgment).

   B. THRESHOLD REQUIREMENT FOR COMPELLING                                     THE
      PRODUCTION OF ELECTRONIC STORAGE DEVICE

      The Texas Supreme Court has held that when ordering intrusive discovery

measures—such as direct access to an opponent’s electronic storage device—at a

minimum, the benefits of the discovery must outweigh the burden imposed upon

the discovered party. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-6

(Tex. 2004).

      Recently, in In re Weekley Homes, L.P., the Court further addressed this

issue. In Weekley, the Court expounded on the necessary showings a requesting

party must make before a court may permit forensic experts direct access to an

opponent’s electronic storage device. 295 S.W. 3d 309, (Tex. 2009).

      Like the present case, the issue in Weekley was whether the trial court

abused its discretion by allowing forensic experts direct access to a party’s

electronic storage devices for imaging and searching. Id. at 312.



                                         8
       In its decision, the Court looked to the Federal Rules of Civil Procedure,

which are analogous to the Texas Rules on electronic discovery, although not

identical. Id. The federal rules state that a trial court may order production of

information that is not reasonably available, only “if the requesting party shows

good cause.”Id. at 317. Good cause requires the court to consider various factors

such as whether,

       the burden or expense of the proposed discovery outweighs its likely
       benefit, considering the needs of the case, the amount in controversy,
       the parties’ resources, the importance of the issues at stake in the
       action, and the importance of the discovery in resolving the issues. Id.

       Although the Texas rules do not expressly require a “good cause” showing

before ordering production of not-reasonably-available electronic information, trial

courts are required to limit discovery if after considering the above factors, they

determine that the burden or expense of the proposed discovery outweighs is likely

benefit. Id.

       The Court went on to reason that providing access to a party’s electronic

storage device is “particularly intrusive and should generally be discouraged just as

permitting open access to a party’s file cabinets for general perusal would be.”Id.

The court also outlined “basic principles” regarding direct access to a party’s

electronic storage device derived from federal case law:


                                          9
    • The requesting party must show that the responding party has somehow
       defaulted in its obligation to search its records and produce the requested
       data.

    • The requesting party should also show that the responding party’s
       production has been inadequate and that a search of the opponent’s
       [electronic storage device] could recover deleted relevant materials.

    • Even if the requesting party makes the threshold showing, only a qualified
       expert should be afforded access to the storage device.

    • Courts have been more likely to order direct access to a responding party’s
       electronic storage devices when there is some relationship between the
       electronic storage device and the claim itself. Id. at 318-319.

      Finally the Court noted that even if the trial court could have concluded that

the requesting party made a showing that their opponent did not search for relevant

deleted emails that were requested, that was not enough to allow access to the

storage devices. Id. at 320. The requesting party had to demonstrate that the

electronic information they sought was retrievable, and what the retrieval of said

information would entail. Id.

      Here, the Record affirmatively demonstrates that Respondent has permitted

Real Party-in-Interest to have direct access to VERP’s electronic storage device

without requiring Real Party-in-Interest to make the necessary showing. [SR, Vol.

1, Tab 5, Pages 49-53, Motion to Compel Responses to Plaintiff’s Second Request

for Production; Tab 3, Pages 7-26, Response to Emergency Motion to Reconsider,
                                        10
[SR, Vol. 1, Tab 9, Pages 110-119, Defendant VERP Investment, LLC’s

Emergency Motion to Reconsider Hearing Reporter’s Record]. Specifically, Real

Party-in-Interest has failed to show 1) anything that suggests VERP may be

withholding, concealing, or destroying discoverable electronic information; 2) that

VERP has not adequately produced the requested data; 3) that retrieval of the

requested data is feasible; 4) any relationship let alone a direct relationship

between the Defendant’s computer hard drive and the claim itself; and, 5) a

reasonable likelihood that the proposed search methodology will yield the

information sought. [SR, Vol. 1, Tab 5, Pages 49-53, Motion to Compel Responses

to Plaintiff’s Second Request for Production; Tab 3, Pages 7-26, Response to

Emergency Motion to Reconsider [SR, Vol. 1, Tab 9, Pages 110-119, Defendant

VERP Investment, LLC’s Emergency Motion to Reconsider Hearing Reporter’s

Record].

      The closest Real Party-in-Interest has come to making any kind of showing

was in his Response to VERP’s Emergency Motion for Reconsideration in which

he stated, “Plaintiff Nguyen needs a copy of the hard drive to determine if the

invoices were first produced in 2014 and without the hard drive that information

cannot be shown.” [SR, Vol. 1, Tab 3, Pages 7-26, Response to Emergency Motion

to Reconsider]. As outlined in Weekley, this is simply not sufficient to compel

access to VERP’s electronic storage device.
                                        11
      Like Weekley, the present case can be distinguished from the facts in In re

Honza, where a party was granted direct access to its opponent’s electronic storage

device. 242 S.W.3d 578 (Tex. App. Waco 2008). In Honza, a central determination

of the case depended on when a partial assignment draft was modified. Id. The

Court allowed access to the opponent’s hard drive but limited the search to

metadata associated with the two versions of the partial assignment that had

already been produced. Id.

       The key distinction between the present case and Honza is that in Honza

there was a direct relationship between the hard drives sought and the claims being

made in the case. The information sought in the hard drive directly concerned a

key issue in the case which was when the partial draft had been modified. Id. at

580. Here, the key issues of the case concern the terms of lease agreements entered

into by VERP and Real Party-in-Interest, and Real Party-in-Interest has made no

showing that there is a direct relationship between his claims and the information

he seeks to obtain through accessing VERP’s hard drive.

                                 CONCLUSION

      VERP has clearly shown that Real Party-in-Interest did not meet the

necessary showing that would permit Respondent to compel the production of

VERP’s electronic storage device. Allowing a party direct access to an opponent’s

electronic storage device is an intrusive discovery measure that requires at a
                                        12
minimum that the benefits of the discovery outweigh the burden imposed on the

discovered party. Real Party-in-Interest has failed to do so. As such, discovery of

VERP’s electronic storage device should not have been permitted. Respondent

abused its discretion in finding otherwise and mandamus should follow.

                                    PRAYER

       WHEREFORE, VERP respectfully requests that this Honorable Court: (a)

compel Respondent to vacate its Order Denying Defendant’s Motion to

Reconsider; (b) compel Respondent to vacate its Order Granting Plaintiff’s Motion

to Compel; and, (c) grant all other relief to which VERP may show itself to be

justly entitled.

                               Respectfully submitted,
                               FRIEDMAN & FEIGER, L.L.P.

                               /s/ Jason H. Friedman
                               _____________________________
                               Lawrence J. Friedman
                               State Bar No. 07469300
                               lfriedman@fflawoffice.com
                               James S. Bell
                               State Bar No. 24049314
                               jbell@fflawoffice.com
                               Jason H. Friedman
                               State Bar No. 24059784
                               jhfriedman@fflawoffice.com




                                        13
                                5301 Spring Valley Road, Suite 200
                                Dallas, Texas 75254
                                (972) 788-1400 (Telephone)
                                (972) 788-2667 (Telecopier)

                                ATTORNEYS FOR RELATOR VERP

                         CERTIFICATE OF SERVICE

      I hereby certify that on the 9th day of January, 2015, a true and correct copy
of the foregoing Motion for Stay was served upon all parties in this matter in
accordance with the Texas Rules of Appellate Procedure.

Respondent:
The Honorable Dale Tillery
134th Judicial District Court
600 Commerce Street, Suite 650
Dallas, Texas 75202

Attorney for Real Parties in Interest:
Bruce E. Turner,
Bennett Weston LaJone & Turner PC
1603 LBJ Freeway, Suite 280
Dallas, Texas 75234
Telephone: (972) 862-2332
Facsimile: (214) 373-2570
Email: bturner@bennettweston.com

                                      /s/ Jason H. Friedman
                                      ________________________________
                                      Jason H. Friedman




                                         14
            VERIFICATION IN ACCORDANCE WITH TEXAS
              RULE OF APPELLATE PROCEDURE 52.3(j)

STATE OF TEXAS                 §
                               §
COUNTY OF DALLAS               §

       BEFORE ME, the undersigned Notary Public, on this day personally
appeared Jason H. Friedman, and after being duly Certified, stated under oath that
he has reviewed Relator's Petition for Writ of Mandamus and concluded that every
factual statement contained therein is supported by competent evidence in the
appendix or record.

      FURTHER AFFIANT SAYETH NOT.



                                            Jason H. Friedman

      SUBSCRIBED AND CERTIFIED TO BEFORE ME y the said Jason H.
Friedman, on this the 9th day of January, 2015.




                                       15
