                                                                                     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


                              -3-
               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).


                                             -4-
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


                                       -5-
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.


                                            -6-
      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.




                                         -7-
                                    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




                                        -8-
