In a defamation case contemplating the suitability of e-discovery for all electronic devices, the Dallas Court of Appeals has conditionally granted relators’ petition for writ of mandamus, finding the trial judge abused his discretion by refusing to hear relator’s relevance and overbreadth objections and granting real parties’ highly intrusive e-discovery request.
In re Andrew Gautreaux and Phillip Peterson (No. 05-25-00380-CV; July 23, 2025) arose from a 2021 harassment and intimidation campaign against ex-employees, vendors, or investors of Legacy Exploration, LLC, a Dallas-based oil-and-gas company. The chain of events began after Legacy’s CEO, Gautreaux, terminated the company’s Chief Legal Officer (and minority owner) Peterson, leading Peterson to sue for breach of fiduciary duty and misuse of company funds for personal use. Peterson’s suit named then-employees May and Shelton as defendants, prompting them to leave the company. Shortly thereafter, they founded a competing oil-and-gas company, Optimum Energy Partners, LLC. A few months later, Gautreaux and Peterson, having just settled the first suit, launched a campaign allegedly threatening May, Shelton, and other ex-Legacy employees with blackmail, extortion, violence, and financial ruin and accusing them of adultery and criminal conduct. They also accused the employees’ lead counsel of conspiracy and complicity.
The employees sued for defamation, defamation per se, business disparagement, and conspiracy. In August 2024, real parties served their First Requests for Production asking Gautreaux and Peterson (Defendants) to produce “responsive electronically stored information (ESI) in its native format”, used within the “Applicable Time” of January 1, 2021 through the pendency of the litigation. Defendants objected to almost every request on the basis that they were overly broad and burdensome, sought information irrelevant to the claims and defenses in the action, and sought information not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs filed a motion to compel in February 2025, asserting that these “boilerplate” responses were improper and lacked specific bases for objection. The trial judge agreed, overruling all objections and finding that the requests were not overbroad and that the “boilerplate” objections made in bad faith. He further prohibited Defendants from clarifying their position before ordering production within three days.
Plaintiffs complained that the few documents produced were barely responsive, failing to include emails sent from other addresses, prolific text messages sent from Gautreaux to investors, and Defendants’ social media posts about Defendants. They moved to show cause explaining Defendants’ noncompliance with the previous order. Defendants denied possessing these documents, stating that they no longer owned the $10,000 URL www.legacyexploration.com that contained the requested emails. They also claimed that Gautreaux’s phone did not save texts. Plaintiffs pointed to Gautreaux’s deposition and their own technology expert’s investigation, confirming that the requested information not only existed but remained under Legacy’s control. Consequently, they also moved for entry of an electronic discovery protocol. Finding that the requested information was accessible, the trial judge again granted the motion, ordering Defendants to submit for forensic imaging and ESI (electronically stored information) collection any personal, work, and external devices used to transmit, store, and receive data from February 26, 2021, to the present. Defendants sought mandamus.
In an opinion by Justice Lee, the court of appeals conditionally granted mandamus relief. Under Rule 192.3, TRCP, the scope of discovery is limited to “any matter that is not privileged and is relevant to the subject matter of the pending action…” Yet, when hearing the February motion, the trial judge operated on the misconception that the scope of discovery also included “any matter reasonably calculated to lead to the discovery of admissible evidence.” The court then considered whether the requested discovery even needed to fit within the actual scope of discovery since Plaintiffs argued that Defendants waived this the relevancy requirement by failing to specifically object to the requests’ “Applicable Time” definition. The court disagreed, finding that Defendants’ sufficiently objected that the requested discovery was both irrelevant and overbroad. because relators and that the applicable time period was “overly broad”. See In re VERP Inv., LLC, 457 S.W.3d 255, 261 (Tex. App.—Dallas 2015, orig. proceeding). Furthermore, the Court concluded that Defendants’ objections were not made in bad faith, despite the fact that they repetitively copied and pasted them into their responses. Rule 193.2 merely requires that objections be made in “good faith” and only waives them if they are “obscured by numerous unfounded objections.” The court stressed that simply copying and pasting objections does not render [them] “boilerplate objection[s]” (citation omitted), especially when Plaintiffs’ own requests were copied and pasted as well.
Returning to the scope of discovery, Defendants argued that the communications made after the alleged defamatory statements were irrelevant because both SCOTX and the 5th Court set the appropriate timeframe for relevance at the time of the defamatory statement’s publication (Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003); Cruz v. Van Sickle, 452 S.W.3d 503,517 (Tex. App.—Dallas 2014, pet. denied)). Plaintiffs countered that Defendants’ communications made after 2021 might be relevant to the defense of the judicial proceedings privilege. Although the phrasing made it appear as if Plaintiffs were “fishing” for evidence, the court declined to decide the issue, concluding that the trial judge abused his discretion by (1) applying the wrong standard for determining the scope of discovery, (2) prohibiting Defendants from explaining their objections, and (3) leaving Defendants with no adequate appellate remedy.
The court ruled that the trial judge must first exercise his gatekeeper function by determining the scope of permissible discovery under the rule and imposing whatever limits are necessary to ensure relevancy. It further concluded that mandamus relief was likewise warranted because Plaintiffs failed to satisfy the Weekley Homes procedure for e-discovery. Under Weekley Homes, “[a]n order requiring direct access to an electronic device is burdensome because it is intrusive….as a threshold to granting access to electronic devices, ‘the requesting party must show that the responding party has somehow defaulted in its obligation to search its records and produce the requested data’” (citations omitted). Plaintiffs didn’t meet this burden. Additionally, any order granting access to the devices “must contain provisions to protect the responding party’s privacy and privileges, as well as the confidentiality of non-responsive information” (citations omitted). Here the court concluded that Plaintiffs adequately demonstrated that a search of Defendants’ hard drives could recover relevant materials (but not their cell phones). But because the trial judge didn’t consider less intrusive measures, such as “whether an expert employed by relators might search for the backup emails on the hard drives or any deleted text messages” (citations omitted). Consequently, the his electronic discovery order was an abuse of discretion.
TCJL Intern Shaan Rao Singh researched and prepared the first draft of this article.
