In re CI Host, Inc., Creative Innovations, Inc., and Hosting Services International, Inc.

Summary

The Supreme Court of Texas considered a mandamus petition challenging an order requiring CI Host to produce computer backup tapes in a civil discovery dispute. The court held that CI Host failed to support its claim that the Electronic Communications Privacy Act protected all information on the tapes and therefore did not establish a clear abuse of discretion. The court denied mandamus relief without prejudice, allowing the parties and trial court to address segregation of protected information and appropriate privacy protections.

Holdings

1. A party asserting an objection or privilege to a discovery request must present evidence establishing the factual and legal basis for the objection and, when only part of the requested material is protected, must produce the discoverable material and segregate the protected material. CI Host did not meet that burden because it failed to show that all information on the tapes constituted protected contents of a communication in electronic storage under the ECPA and failed to segregate the information it admitted was not protected.
2. The trial court did not abuse its discretion by ordering production of the backup tapes on the record before it.
3. Mandamus relief should be denied without prejudice where the record shows that the tapes contain both protected and unprotected information, some information may be confidential to customers, and the information can be segregated and addressed through an appropriate protective order.

Questions Presented

1. Whether the trial court clearly abused its discretion by ordering CI Host to produce the backup tapes in their entirety.
2. Whether CI Host met its burden under the Texas Rules of Civil Procedure to support its objection that the Electronic Communications Privacy Act protected all information on the tapes.
3. Whether mandamus relief should be granted or denied without prejudice in light of acknowledged protected information and potential third-party privacy interests.

Disposition

writ_denied