March 20, 2018 Articles

Form Fights: Battles over Content and Proportionality

"Form fights" are not mere technical matters of interest only to the pocket-protector crowd.

By Steven S. Gensler and Xavier Rodriguez

In 2017, the Texas Supreme Court went out of its way to write about an unlikely topic—the form in which computer records must be produced in civil discovery. In re State Farm Lloyds, 520 S.W.3d 595 (Tex. 2017). But “form fights” are not mere technical matters of interest only to the pocket-protector crowd. Beneath the surface, battles over form of production are usually battles over content and proportionality. Sure enough, the Texas Supreme Court’s opinion wasn’t just—or even mostly—about form of electronically stored information (ESI) productions. It was about how relevance and proportionality converge to define the scope of discovery, and the trial court’s duty to keep discovery costs reasonable.

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