It was not until this morning that the Harris County Court Site was updated, showing that Virgie Arthur won some and Art Harris won “some”, but what? To see this go to the Harris County Court web site at http://apps.jims.hctx.net/courts/. Pick the Oral Hearings Docket Inquiry on that page then pick the date of April 30, 2010 from the drop down menu and the 80th Court from that drop down menu and you will see the following: 10:30 HRS 200824181 READY DOCKET COMPEL ANS TO INTERROGS – MTN (TRCP 168) MCCABE, NEIL C. GRANTED IN PART And: 10:30 HRS 200824181 READY DOCKET MOTION FOR PROTECTION FROM DISCOVERY REQUEST BABCOCK, CHARLES LYNDE IV GRANTED IN PART

I look back at the Rita Cosby suit and how quick her lawyer had her hard drive imaged at the start of that lawsuit and I wonder if in August once Craig Ball’s questions came out about deleting thousands of documents did Art Harris’ lawyers at Jackson Walker have his hard drives imaged by their expert Kroll Ontrack. Which by the way was Cosby’s expert as well. If they did and that company did an Affidavit as they did in the Cosby case then I am sure Judge Larry Weiman gave the hard drives back to Harris to destroy. If they have not already had Kroll Ontrack image the hard drives, which I have not seen any affidavit that they have done the images, I would still bet that Judge Weiman would order the hard drives sent back to Chip Babcock the lead attorney for Harris with the assurance that just like in the Cosby case the imaged hard drives would go into their safe until all of this is resolved.

I went back AGAIN and read In Re Weekley Homes to see the gold standard of electronic discovery guidelines for Texas. I am still betting that future court decisions will rest on this standard for all Texas Courts. For the first time I caught and read the last sentence of that Opinion by the Supreme Court of Texas. “We note that HFG is not precluded from seeking to rectify the deficiencies we have identified.” That translate in this case to “We note that Virgie Arthur is not precluded from seeking to rectify the deficiencies we have identified.” That is why earlier I predicted that the document production would be rolled back to December 2008 and started over again.

Now let’s look at the requirements of In re Weekley Homes for an independent forensic expert under those guidelines to report on imaged hard drives. “In this mandamus proceeding, we must decide whether the trial court abused its discretion by ordering four of the defendant’s employees to turn over their computer hard drives to forensic experts for imaging, copying, and searching for deleted emails. Because the plaintiff failed to demonstrate the particular characteristics of the electronic storage devices involved, the familiarity of its experts with those characteristics, or a reasonable likelihood that the proposed search methodology would yield the information sought, and considering the highly intrusive nature of computer storage search and the sensitivity of the subject matter, we hold that the trial court abused its discretion.”

So we have the following to be “cured” on the do over that In re Weekley Homes allows to happen:

1. Arthur needs to be able to verify that she has obtained the “particular characteristics of the electronic storage devices involved.” Arthur is asking for all of that in the new Request for Discovery and Motion to Compel. See Questions 5 through 8. So on Arthur’s do over she is asking for this information. Also remember in the April 22, 2010 that the First Court of Appeals stated that the Court of Appeals was; “‘Conditionally’ granted the petition for the Writ of Mandamus. The Court of appeals stated on page 29 at footnote 9; “Harris argues that, while Arthur’s request for production did ask for emails, the requests did not specify the form in which the requesting party wanted the emails produced. This argument is not supported by the record. The instructions in the requests for production stated the form in which electronic files should be produced.”

2. Arthur needs to cure or clarify the forensic expert does have “the familiarity of its experts with those characteristics”. Arthur has already done this with Craig Ball. You may not like him but he still trains most of the judges in Texas and almost all of the forensic experts in the U. S. and even the U. K. have been trained or have attended seminars with Craig Ball so they all have respect for him. Thus Arthur in my opinion has met this standard In re Weekley Homes.

3. Arthur must also in the do over show that there is a “reasonable likelihood that the proposed search methodology would yield the information sought.” Or in this case confirm that thousands of documents were deleted.

Now my guess is that this will go back to the Court of Appeals under the do over Weekley Homes provides to the Texas Courts. I have no reason to doubt that Judge Weiman did not narrow the list of people to look for here as he did with Lin Wood, the attorney for Howard K. Stern, thus eliminating any “overly broad of discovery” issues. I think discovery will continue including an up coming day three of my deposition. To date McCabe and Jackson Walker attorneys have had all of the 12 hours of my deposition and now each gets to go back and ask clarifying questions I believe.

May 3, 2010 Art Harris Motion to Dismiss Case before Supreme Court of Texas without Prejudice as Moot.

So do I like Art Harris, I don’t know the guy, should he expect a Christmas card from me NOPE. Why? Because of him this lawsuit and discovery is going to go on like the energizer bunny and the filings are going to become very technical and time consuming for everyone.

On the TMZ filing due April 30th that they “passed” or ask the court to “pass” on the May 5, 2010 hearing for their Motion for Final Summary Judgment could be for a multitude of reasons. My “guess” is that it has something to do with the Pro Hac Vice pending for the California attorney, or to get the full team up to speed. Or Harry Susman of Susman Godfrey might think the filings they did on behalf of TMZ.com and Harvey Levin and Arthur’s filings speak for themselves and thus the Court can decide by the agreement of the attorneys to rule only on the filings without the need to run up legal fees that a hearing would add to all of their clients’ bill.

May 3, 2010 Notice of Submission by TMZ.com and Harvey Levin for May 10, 2010 without Oral Hearing.

When the Order comes out next week that probably Charles Babcock and Neil McCabe have been told to work together to prepare one for the Court to sign as is often done in win some and lose some hearings, then we will know who won what and who lost what in Friday’s hearing.

Remember folks what looks like common sense to all of us is not how the Court operates and with that said, I still like Judge Weiman and believe he is and will continue to go by the letter of the law and to unravel this mess.

I don’t know for sure and will look it up but I think Arthur has missed the filing deadline with the Court of Appeals to try to keep CBS and Entertainment Tonight in the case. So we have two parties out and the rest of us on a hold and see pattern.

Please go back and read the opinions I have listed in Federal Courts about deleting documents from computers since September 2009, in fact I will list them here again today in just a bit as I am also reading them in more depth.

Be sure to participate in our MEMBERS ONLY FORUMS, get the most out of the site by learning your way around in the forums where you can safely discuss things you do not want to see copied and pasted on another site.

©Rose Turner
May 1, 2010
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

The expressions in this blog article are based on the opinions of Rose Turner or our featured authors, please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this blog article are the opinions and sole property of the blog site members and do not necessarily reflect those of the site owners.

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Tags: 80th District Court Houston Texas, 80th District Court of Harris County, Anna Nicole Smith, Art Harris, Bonnie Stern, CBS-ET, Celebrity Trials, Charles "Chip" Babcock, computer storage, Craig Ball, Craig Ball Electronic Forensic Expert, Dannielynn, E-Discovery, electronic discovery guidelines, Entertainment Tonight, First Court of Appeals, First Court of Appeals Texas, forensic expert Craig Ball, Harry Susman Esq., Harvey Levin, High Profile Trials, Honarble Larry Weiman, Howard K Stern, In re Art Harris, In re Weekley Homes, intrusive nature of computer storage, Judge Larry Weiman, Judge Weiman, Kroll Ontrack, L. Lin Wood, Lin Wood, Luke Lantta, Lyndal Harrington, mandamus, Neil McCabe, Rita Cosby, Rose Turner, Supreme Court of Texas, Susman and Godfrey, Susman Godfrey, Texas Supreme Court, The O'Quinn Law Firm, TMZ.com, trial court abused its discretion, trial court discretion, Virgie Arthur, Weekley Homes, Writ of Mandamus

First Court of Appeals in Houston Texas issued it’s Opinion “Conditionally” granting Art Harris Motion for Writ of Mandamus.

Here are the Orders the Trial Court Issued on January 27, 2009, May 11, 2009 and August 28, 2009. All of these were overruled by the First Court of Appeals today in regards to Harris but the full appointing of Craig Ball as a Special Master was also overruled so my take is that this applies to all of the defendants. I am also linking Harris’ Motion to Reconsider the Appointment of a Special Master filed August 23, 2008.

I will be posting some Federal Court Decisions recently issued that seems to agree with this ruling.

It is unclear if Virgie Arthur is entitled to the additional 300 million pages of emails that were produced during the imaging of Harris’ hard drives that the Plaintiff never received. It seems the Court of Appeals is saying that Arthur is only entitled to the original 300 pages Harris turned over in December 2008 and the production will be rolled back to December 2008, with Arthur having to make addition Request for Production of Harris. Remember on March 12, 2009 the 80th District Court eliminated and all parties at the conference agreed that the production should become much more narrow and Judge Weiman stated that going into someone’s hard drives was very intrusive and should be avoided if possible.

On points one and three that Harris filed an Appeal on the Appellate Court to ruled that; “We hold that in compelling discovery from Harris without requiring Arthur to identify specific discovery requests with which Harris had not complied, without holding a hearing on Harris’ motion for protective order, and in ordering production from Harris without having before it a motion to compel discovery from him, the trial court acted arbitrarily and without considering the discovery rules.” That is why I am saying back to the 300 pages produced in December 2008 with a MUCH more narrow search of emails (I. E. only from the defendants to each other and about Arthur)” and “We further hold that the trial court abused its discretion in ordering over broad discovery and in failing to determine whether the documents sought by Arthur from Harris were privileged, as Harris claimed, or even whether they were relevant or reasonably calculated to lead to the discovery of evidence relevant to Arthur’s claims.”.

In relation to Points one; “(1) in ordering Harris to turn over “electronic media” for forensic examination when there was neither a pending request for production nor any request for production of documents with which he had not complied;” and three, “(3) in refusing to apply Texas Rule of Civil Procedure 193.3 and other discovery procedures on the treatment of privileged documents and creation of privilege logs;” the Appellate Court ruled; “We conclude that the trial court abused its discretion not only by compelling production of overly broad discovery without addressing Harris’ motion for protective order and without a motion to compel discovery from Harris before it, but also by issuing its even more invasive order that Harris produce his hard drives and by failing to require Arthur to make any showing that the benefit of the discovery she sought outweighed the burden and expense to Harris. Thus, we hold that the trial court abused its discretion by issuing the January 27, 2009 order compelling Harris to produce documents in response to Arthur’s requests for production and to produce his hard drives and by issuing its May 11, 2009 order denying Harris’ motion to clarify. We sustain Harris’ first issue. ….Because we have already determined that the trial court erred in the ways set forth above, this issue is moot. We overrule Harris’ third issue.”

In relations to point four; “(4) by failing to consider Rule 171 in appointing a special master to conduct forensic computer examinations;” and five, “(5) by appointing a special master to investigate and inquire into patterns of discovery abuse, or, in the alternative, by failing to remove a special master who is acting outside the limitations and specifications stated in the Order appointing him, including reading attorney-client communications.” The First Court of Appeals used Weekley Homes for guidance in their rulings which I think we all would agree is the right litmus test, the Court Stated that “We conclude that Harris has not waived his fourth and fifth issues.” The Appellate Court in it’s ruling states; “To the extent that the trial court’s appointment of Ball was as a forensic examiner instead of as a master, we hold that the trial court abused its discretion by failing to comply with Weekley Homes, as we have explained above. We sustain Harris’ fourth and fifth issues.”

In reference to Harris Point two; “(2) in ordering Harris to respond to the Special Master’s questions and to assess usage and contents of other electronic media listed in the Special Master’s August 17, 2009 email”…” The Court Ruled that; “Because we have already determined that the court’s appointment of Craig Ball as a forensic examiner and special master was an abuse of discretion, this issue is moot.”

The only mistake I found which in my opinion would not affect this ruling is that Ogden filed to leave January 2, 2009 and Harris’ new counsel did not file an appearance until February 2, 2009, that is a simple typo I believe. My take is of course the Special Master Craig Ball is gone, Arthur pays his fees and the discovery if rolled back to December 2008 with Motion to Produce now going from that date. I have no idea how this will affect the April 30th hearing on Harris Motion for Protective Order not to answer or produce any information pending the First Court of Appeals Ruling. I also have no idea how this will affect the “Default Judgment” rendered against Bonnie Stern or the incarceration of Teresa Stephens and Lyndal Harrington. It looks to me like Judge Weiman and the 80th District Court for Harris County is going to have to digest this ruling and then go forward. However any information provided by Craig Ball appears to be out in this case in my opinion.

Because the Appellate Court also refers to Federal Court Rulings I will be putting up three recent rulings including one involving Bryan Cave, (not Lin Wood or Luke Lantta) where they recently had over turned an over $60 million dollar jury award based on three emails that were not produced. All interesting reading and ALL above my head. I look forward to your input on this and does email make lawsuits much more complex for all of us?

April 22, 2010 Howard K. Stern files Notion of Hearing on his Special Objection to Jurisdiction for June 4, 2010 at 2:30 PM in the 80th District Court for Harris County.

NEWEST FILINGS APRIL 23, 2010 IN TEXAS

April 23, 2010 TMZ Motion Requesting Permission to Participate of TMZ’s California lawyer.

April 23, 2010 TMZ Unopposed Motion filed with Request to Participate of TMZ’s California lawyer.

April 23, 2010 Realttor Howard K. Stern’s Notice of Controlling Authority Related to Original Proceeding. My take this is the beginning of having Stern’s Appeal dismissed.

As I have said before I am real impressed with Judge Weiman and think he will move this case along now. I think Howard K. Stern’s appeal is now moot based on the fact that no Special Master should have ever been Ordered in this case. I think Craig Ball will be glad to dump this case, he could not tell Judge Lindsay she was wrong no matter what he thought of her Orders.

Be sure to participate in our MEMBERS ONLY FORUMS, get the most out of the site by learning your way around in the forums where you can safely discuss things you do not want to see copied and pasted on another site.

©Rose Turner
April 22, 2010
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

The expressions in this blog article are based on the opinions of Rose Turner or our featured authors, please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this blog article are the opinions and sole property of the blog site members and do not necessarily reflect those of the site owners.

Please also read our Terms of Use and our Privacy Policy.

Tags: 280th District State Court Harris County, 80th District Court of Harris County, Anna Nicole Smith, Art Harris, Bonnie Stern, Celebrity Trials, Charles "Chip" Babcock, First Court of Appeals in Houston Texas, First Court of Appeals Texas, Harvey Levin, High Profile Trials, Howard K Stern, Judge Larry Weiman, Judge Larry Weiman - 80th District Court, Judge Tony Lindsay, L. Lin Wood, Lin Wood, Luke Lantta, Lyndal Harrington, Neil McCabe, Rose Turner, Special Master Craig Ball, Texas First Court of Appeals, The O'Quinn Law Firm, TMZ.com, Virgie Arthur

Howard K. Stern mailed his Response to the First Court of Appeals on Friday, March 12 to be entered by the Appellate Court on March 15. Stern’s Response is to Virgie Arthur’s Motion for Sanctions against Stern and attorney L. Lin Wood.

March 12, 2010 Response by Howard K. Stern to Arthur’s Motion for Sanctions.

March 12, 2010 Exhibit A filed with Howard K. Stern to Arthur’s Motion for Sanctions.

March 12, 2010 Exhibit B filed with Howard K. Stern to Arthur’s Motion for Sanctions.

March 12, 2010 Exhibit C filed with Howard K. Stern to Arthur’s Motion for Sanctions.

March 12, 2010 Exhibit D filed with Howard K. Stern to Arthur’s Motion for Sanctions.

March 12, 2010 Exhibit E filed with Howard K. Stern to Arthur’s Motion for Sanctions.

March 12, 2010 Exhibit F filed with Howard K. Stern to Arthur’s Motion for Sanctions.

Status Conference held with the Honorable Larry Weiman of the 80th District Court of Harris County on March 12, 2010 at 3:30 PM.

Those in attendance in person:

Diana Marshall for Larry Birkhead
Neil McCabe for Virgie Arthur with a young associate that I did not get the name when Mr. McCabe introduced him.
One or two lawyers for TMZ not sure if it was Richard Hess and/or Harry Susman, whoever was there for TMZ did not talk at all during the conference.
A male attorney from Jackson Walker that I had never heard the name before and he did not speak during the conference either.

Those in attendance by phone conference:

L. Lin Wood for Howard K. Stern who was on vacation in Utah and on a day trip up a mountain but wanted to be present.
Luke Lantta for Howard K. Stern who was in the office in Atlanta Georgia
Rose Turner who was in my home in Gladewater Texas.
Charles “Chip” Babcock entered the telephone conference partial through the conference but did not speak during the conference hearing.

The conference stated at 3:30 PM and lasted until almost 5 PM, other than introducing myself and asking one question about the Special Master Craig Ball although I was part of the conference by phone I took notes.

The main parties talking with Judge Weiman were Mr. Wood and Mr. McCabe.

Diana Marshall coming in for two rambling comments, that I thought could have been better stated in one or two sentences. However, Ken thought when I told him that perhaps it was one of those misdirections to get off of her client, Larry Birkhead doing a deposition before any hearing for a Special Appearance on Jurisdiction that he filed or providing the server he uses for emails. If that was the purpose she succeeded in running out the clock and not having any deposition or production of doucments or naming an email server of her client brought up by the Court or the parties.

Ms. Marshall was a good friend of John O’Quinn’s had ran in his social circle, belong to the same country club and knew him very well, HOWEVER that said, she has stated before that she never forgets who butters her bread, the client, in this case Birkhead. Ms. Marshall seemed to side more with Mr. McCabe then she did with Mr. Wood, although I frankly got lost in part of the two long ramblings I felt she did toward the Court and of course the clock.

The judge impressed me he knew the statutes and he controls his courtroom, he is cordial to all but he is a very smart guy and had a beautiful voice.

At one time they were referring to a Rule 11 agreement between Stern and Arthur that had been put in the record in 2008, Wood did not have a copy with him and Mr. McCabe did have it but was going to go through the file to pull it out, and INSTANTLY the judge had his copy from the jacket of documents he had related to the case and read it into the record himself. Now that was impressive to me and showed he had read all of the filings and anything else that might come up on Friday.

Mr. Wood pushed for a hearing on the long pending Special Appearance of his client, Judge Weiman asked if there had been a hearing at all on the Special Appearances and Wood and McCabe said something like briefly in December 2008. The Court spent time on Howard K. Stern’s deposition on both jurisdiction and merits asking at one time in order to move the case along would Mr. Wood be willing to have two depositions, one for jurisdiction and then if needed one for the merits of the case later.

The Court then asked why something in regards to Howard K. Stern’s deposition had not been decided before this time, and that brought up could Steve Sadow, Stern’s criminal attorney be there, which McCabe had previously not wanted and Wood had insisted on it. Mr. McCabe very quickly said he would be willing for Mr. Sadow to be present as long as he abides by Texas state statute, which allowed him to be there but not to talk, make co

Tags: 80th District Court of Harris County, Amamda Bush Esq., Anna Nicole Smith, Art Harris, Bonnie Stern, Bryan Cave LLP, CBS - Entertainment Tonight, CBS-ET, Celebrity Trials, Charles "Chip" Babcock, Chrystal Baker, Daniel Smith, Dannielynn, Diana Marshall Esq., Entertainment Tonight, First Court of Appeals Texas, Harry Susman Esq., Harvey Levin, High Profile Trials, Honorable Larry Weiman, Houston Texas, Howard K Stern, Jackson Walker LLP, Judge Larry Weiman, Judge Larry Weiman - 80th District Court, Ken and Rose Turner, L. Lin Wood, Lin Wood, Luke Lantta, Lyndal Harrington, Neil McCabe, QV - Queen of Vondonia, Richard Hess Esq., Rose Turner, Steve Sadow Esq., Supreme Court of Texas, Sweet Havana, Teresa Stephens, The O'Quinn Law Firm, TMZ.com, Virgie Arthur, Yvonne Barnhart Waddle, Yvonne Waddle