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.

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©Rose Turner
May 1, 2010
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