Court Holds the Weekley Homes<\/em> Standard Applies <\/strong><\/h3>\nThe Houston Court of Appeals (14th) has held that the plaintiff in a trade secrets lawsuit is not automatically entitled to a forensic examination of a defendant\u2019s device that was allegedly used to take the defendant\u2019s alleged trade secrets. In re 4X Industrial, LLC<\/em><\/a>, __ S.W.3d __, No. 14-23-00183-CV, 2024 WL 333798 (Tex. App.\u2014Houston [14th Dist.] Jan. 30, 2024) (orig. proceeding).<\/p>\nRather, to obtain an order for \u201cdirect access\u201d to the defendant\u2019s computer or electronic storage device, the plaintiff must satisfy the requirements established by the Texas Supreme Court in In re Weekley Homes<\/em><\/a>, 295 S.W.3d 309 (Tex. 2009). Those requirements include showing that the defendant defaulted on his discovery obligations. 4X Industrial<\/em>, 2024 WL 333798 at *6.<\/p>\nIf you\u2019re not a lawyer who regularly handles such cases, this may sound pretty technical, but it\u2019s actually a big deal, with important practical consequences. I\u2019ll explain.<\/p>\n
Requests for \u201cDirect Access\u201d in Trade Secrets Litigation<\/strong><\/h3>\nHere\u2019s how it usually goes down.<\/p>\n
Dawn Davis sells windows for Paula Payne Windows. She doesn\u2019t have a non-compete, so when Paula Payne starts cutting her commissions, she jumps ship and goes to work for competitor Real Cheap Windows.<\/p>\n
So far, so good.<\/p>\n
But Dawn messes up on the way out. On her last day of work at Paula Payne, Dawn copies 300 files from her work laptop on to a thumb drive and takes the thumb drive with her.<\/p>\n
Or she emails the 300 files to her personal email address. Or has them in Google Drive. Or she puts them on an external hard drive. There are endless variations, but you get the idea.<\/p>\n
Let\u2019s pause here to note: Sometimes the employee does stuff like this for a justifiable reason, sometimes for a bad reason, and sometimes it\u2019s kind of \u201cin between.\u201d So there may be malicious intent, but you shouldn\u2019t just assume<\/em> that.<\/p>\nAnyway, Paula Payne does a forensic review of Dawn\u2019s laptop, which reveals everything Dawn did, including copying the 300 files to the thumb drive.<\/p>\n
Let\u2019s pause again to note: You\u2019d think by now every employee would understand that everything they do on a computer leaves an electronic trail, so there\u2019s generally no hiding the fact that they took company documents. But no. They don\u2019t. And that reality keeps me fully employed.<\/p>\n
The lawyer for Paula Payne Windows sends Dawn Davis a nastygram saying we\u2019ve caught you red-handed and you\u2019d better turn over all your devices and accounts to our forensic expert immediately, or we\u2019ll sue. Sue, I tell you, sue!<\/p>\n
Let\u2019s suppose Dawn doesn\u2019t cooperate. \u201cWorking at that place sucked after the private equity firm bought it, and they stiffed me on my last commissions,\u201d she tells her lawyer. \u201cI\u2019m not about to give them anything!\u201d<\/p>\n
So there\u2019s a lawsuit. And the first thing Paula Payne\u2019s lawyer does (after the obligatory \u201cemergency\u201d TRO hearing) is send a request for production of documents. Including a request for Dawn to turn over the thumb drive and any personal computer she connected it to for examination by a forensic expert.<\/p>\n
Dawn\u2019s lawyer objects, citing Weekley Homes<\/em>. \u201cWeekley Homes<\/em> requires a threshold showing that Dawn defaulted on her discovery obligations before direct access may be ordered,\u201d her lawyer writes, \u201cand there has been no such showing here.\u201d<\/p>\nMore specifically, Weekley Homes<\/em> requires showing four things to get a direct access order:<\/p>\n(1)\u00a0 the responding party has defaulted on its discovery obligations;<\/p>\n
(2)\u00a0 less intrusive means would be inadequate to obtain the relevant information;<\/p>\n
(3)\u00a0 the requested direct access is likely to result in identifying relevant information to be produced; and<\/p>\n
(4)\u00a0 direct access will not impose an undue intrusion on the responding party.<\/p>\n
Weekley Homes<\/em>, 295 S.W.3d at 317-22.<\/p>\nUndue intrusion can occur, for example, if the court order doesn\u2019t include a protocol for protecting the responding party\u2019s private or privileged documents.<\/p>\n
Paula Payne\u2019s lawyer files a motion to compel and responds. \u201cThis is a trade secrets lawsuit where the thumb drive at issue contains the very documents that Plaintiff claims Defendant stole,\u201d she argues. \u201cThe Weekley Homes<\/em> standard simply does not apply.\u201d<\/p>\nSo what is the trial court to do?<\/p>\n
Does Weekley Homes<\/em> Apply to Trade Secrets Suits?<\/strong><\/h3>\nThe defendant\u2019s argument is that the Weekley Homes<\/em> standard applies generally to all civil suits, including suits alleging misappropriation of confidential information or trade secrets.<\/p>\nThere is nothing in the Weekley Homes<\/em> opinion indicating its standard is limited to any particular type of lawsuit, or that it doesn\u2019t apply to trade secrets suits.<\/p>\nFurthermore, the policy concerns behind the Weekley Homes<\/em> standard apply just as much when a defendant is accused of taking the plaintiff\u2019s documents.<\/p>\nSuppose the plaintiff accuses the defendant of stealing a hard copy of a confidential customer list. The plaintiff serves a request to come into the defendant\u2019s house to search his file cabinets for the list. This would never be allowed!<\/p>\n
But a request for direct access to an electronic device is just as invasive, in principle. In some ways, considering the sheer amount of personal information that could be found on an electronic device, it is even more<\/em> invasive.<\/p>\nThat\u2019s why the Texas Supreme Court said a request for direct access is to an electronic device is \u201cparticularly intrusive and should be generally discouraged, just as permitting open access to a party\u2019s file cabinets for general perusal would be.\u201d Weekley Homes<\/em>, 295 S.W.3d at 317.<\/p>\nThe plaintiff, on the other hand, will cite the part of Weekley Homes<\/em> that approvingly cites federal case law allowing direct access to devices when the use of the device to take the plaintiff\u2019s documents is part of the cause of action at issue. See id<\/em>. at 319.<\/p>\nPlus, the lawsuit at issue in Weekley Homes<\/em> had nothing to do with allegations of taking the plaintiff\u2019s documents, the plaintiff will argue.<\/p>\nIn response, the defendant will cite cases that applied the Weekley Homes<\/em> standard to departing employee cases involving allegations like misappropriation of trade secrets. See, e.g.,<\/em> In\u00a0re\u00a0Methodist Primary Care Group<\/em>, 553 S.W.3d 709, 717pinna (Tex.\u00a0App.\u2014Houston [14th Dist.] 2018, orig. proceeding); In re Pinnacle Engineering, Inc<\/em>., 405 S.W.3d 835, 842-44 (Tex. App.\u2014Houston [1st Dist.] 2013, orig. proceeding).<\/p>\nThese cases applied the Weekley Homes <\/em>standard, apparently assuming it applies to cases involving allegations of misappropriation of company documents. But until recently, there was no clear answer to the question.<\/p>\nNow there is.<\/p>\n
Houston Court of Appeals Directly Rejects Argument That Weekley Homes<\/em> Does Not Apply to Trade Secrets Litigation <\/strong><\/h3>\nThe plaintiff in 4X Industrial<\/em>, Russell Marine, obtained a trial court order requiring production of two electronic storage devices by a former employee of the plaintiff who allegedly used the two devices to take company documents. 4X Industrial<\/em>, __ S.W.3d at __, 2024 WL 333798 at *4.<\/p>\nIn the court of appeals, Russell Marine argued that the Weekley Homes<\/em> standard did not apply, or that if it did, the standard had been met. Id<\/em>. at *5.<\/p>\nSpecifically, Russell Marine contended that Weekley Homes does not apply \u201cbecause the information it seeks from the [former employee\u2019s] Devices is the subject matter of the lawsuit.\u201d Id<\/em>. at *6. It cited Weekley Homes<\/em>\u2019 acknowledgment that direct access is more likely to be allowed when there is a direct relationship between the device and the claims. Id<\/em>.<\/p>\n\u201cEffectively,\u201d the court of appeals said, \u201cRussell Marine asks us to recognize a plaintiff\u2019s automatic <\/em>right to directly access electronic storage devices when the claims are for misappropriation of trade secrets and there is an indication that trade secrets were taken electronically.\u201d Id<\/em>.<\/p>\nThe court of appeals declined to do this: \u201cWe do not read Weekley Homes<\/em> as suggesting that examination of another party\u2019s electronic storage device is automatic in any type of case, including cases alleging misappropriation of trade secrets. Surrendering an electronic storage device for examination by another litigant is particularly intrusive no matter what claims are at issue. Importantly, the availability of electronic discovery is always subject to a balancing test.\u201d Id<\/em>.<\/p>\n\u201cIn any given case,\u201d the court said, \u201cconsideration of the relevant interests may counsel against direct access to an electronic storage device because the production of documents from the device may prove adequate without a need to examine the device itself.\u201d Id<\/em>.<\/p>\nThe court of appeals noted Weekley Homes<\/em>\u2019 acknowledgment of federal cases amenable to allowing direct access when there is a direct relationship between the electronic storage device and the claim itself. Id<\/em>. \u201cThis result makes sense when considering the balancing of relevant concerns as applied to trade secrets theft cases,\u201d the court said, \u201cbut neither Weekley Homes<\/em> nor the cases it discusses suggest that a misappropriation of trade secrets plaintiff has an automatic right to conduct a forensic examination of electronic storage devices.\u201d<\/p>\nThen the court noted that both the Fourteenth Court of Appeals and the First Court of Appeals had applied the Weekley Homes<\/em> standard to similar cases involving allegations such as theft of trade secrets. See id<\/em>. (citing Methodist Primary Care Group<\/em> and Pinnacle Engineering).<\/p>\nAccordingly, the court held that the Weekley Homes<\/em> standards applied.<\/p>\nWhy the 4X Industrial<\/em> Decision is Important <\/strong><\/h3>\nFully appreciating the importance of the 4X Industrial<\/em> decision may require some familiarity with the use\u2014and overuse\u2014of direct access orders by Texas trial courts in departing employee lawsuits.<\/p>\nThe unfortunate trend, at least in some trial courts, was to treat a request for direct access to a defendant\u2019s devices as almost automatic in a case where the plaintiff alleges a former employee took company documents and put them on a personal device.<\/p>\n
And shouting \u201cbut Weekley Homes<\/em>, Your Honor!\u201d didn\u2019t always work. Trust me.<\/p>\nIn fairness, there is some<\/em> logic to ordering a former employee to turn over a device that allegedly has the company\u2019s documents on it. But immediately jumping to a direct access order is improper, for reasons Weekley Homes<\/em> addressed. There are hurdles the plaintiff should have to clear before obtaining such an intrusive remedy.<\/p>\nUnfortunately, it had become common for both the requesting lawyers and judges to brush aside the requirements of Weekley Homes<\/em> in this type of case.<\/p>\nSome lawyers would request direct access to devices in their first request for production of documents, before there was any possibility that the responding party had defaulted on its discovery obligations. And some trial court judges tended to assume they had the authority to order direct access in a trade secrets case as long as they thought it was fair and expedient.<\/p>\n
But that\u2019s not how it works. The 4X Industrial<\/em> decision has now made that clear. We should thank the lawyers for the 4X Industrial<\/em> defendants for that!<\/p>\n_________________________<\/p>\n
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<\/p>\n
Zach Wolfe (<\/em>zach@zachwolfelaw.com<\/em><\/a>)<\/em>\u00a0<\/em>is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm (<\/em>zachwolfelaw.com<\/em><\/a>). Thomson Reuters has named him a Texas Super Lawyer\u00ae for Business Litigation every year since 2020.<\/em><\/p>\nThese are his opinions, not the opinions of his firm or clients, so don\u2019t cite part of this post against him in an actual case. Every case is different, so don\u2019t rely on this post as legal advice for your case. <\/em><\/p>\n\u00a0<\/p>\n<\/p><\/div>\n\n","protected":false},"excerpt":{"rendered":"
Court Holds the Weekley Homes Standard Applies The Houston Court of Appeals (14th) has held that the plaintiff in a trade secrets lawsuit is not automatically entitled to a forensic examination of a defendant\u2019s device that was allegedly used to take the defendant\u2019s alleged trade secrets. In re 4X Industrial, LLC, __ S.W.3d __, No. […]<\/p>\n","protected":false},"author":1,"featured_media":78745,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[4507,410,17899,19533,12872,25801,39868,6075,9792],"dealstore":[],"offerexpiration":[],"class_list":["post-78744","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal","tag-computer","tag-court","tag-exams","tag-forensic","tag-houston","tag-lawsuits","tag-reigns","tag-secrets","tag-trade"],"yoast_head":"\n
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In re 4X Industrial, LLC, __ S.W.3d __, No. […]","og_url":"https:\/\/fivemor.com\/?p=78744","og_site_name":"Som2ny Network","article_published_time":"2025-02-09T23:33:48+00:00","og_image":[{"width":1280,"height":654,"url":"https:\/\/fivemor.com\/wp-content\/uploads\/2025\/02\/rodeo-3612844_1280.jpg","type":"image\/jpeg"}],"author":"admin","twitter_card":"summary_large_image","twitter_misc":{"Written by":"admin","Est. reading time":"9 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/fivemor.com\/?p=78744#article","isPartOf":{"@id":"https:\/\/fivemor.com\/?p=78744"},"author":{"name":"admin","@id":"https:\/\/fivemor.com\/#\/schema\/person\/b85e3c3dc0e1daea076524dc8810c371"},"headline":"Houston Court Reigns in Forensic Computer Exams in Trade Secrets Lawsuits","datePublished":"2025-02-09T23:33:48+00:00","mainEntityOfPage":{"@id":"https:\/\/fivemor.com\/?p=78744"},"wordCount":1892,"commentCount":0,"publisher":{"@id":"https:\/\/fivemor.com\/#organization"},"image":{"@id":"https:\/\/fivemor.com\/?p=78744#primaryimage"},"thumbnailUrl":"https:\/\/fivemor.com\/wp-content\/uploads\/2025\/02\/rodeo-3612844_1280.jpg","keywords":["Computer","Court","Exams","Forensic","Houston","Lawsuits","Reigns","Secrets","Trade"],"articleSection":["Legal"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/fivemor.com\/?p=78744#respond"]}]},{"@type":"WebPage","@id":"https:\/\/fivemor.com\/?p=78744","url":"https:\/\/fivemor.com\/?p=78744","name":"Houston Court Reigns in Forensic Computer Exams in Trade Secrets Lawsuits - 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Rather, to obtain an order for \u201cdirect access\u201d to the defendant\u2019s computer or electronic storage device, the plaintiff must satisfy the requirements established by the Texas Supreme Court in In re Weekley Homes<\/em><\/a>, 295 S.W.3d 309 (Tex. 2009). Those requirements include showing that the defendant defaulted on his discovery obligations. 4X Industrial<\/em>, 2024 WL 333798 at *6.<\/p>\n If you\u2019re not a lawyer who regularly handles such cases, this may sound pretty technical, but it\u2019s actually a big deal, with important practical consequences. I\u2019ll explain.<\/p>\n Here\u2019s how it usually goes down.<\/p>\n Dawn Davis sells windows for Paula Payne Windows. She doesn\u2019t have a non-compete, so when Paula Payne starts cutting her commissions, she jumps ship and goes to work for competitor Real Cheap Windows.<\/p>\n So far, so good.<\/p>\n But Dawn messes up on the way out. On her last day of work at Paula Payne, Dawn copies 300 files from her work laptop on to a thumb drive and takes the thumb drive with her.<\/p>\n Or she emails the 300 files to her personal email address. Or has them in Google Drive. Or she puts them on an external hard drive. There are endless variations, but you get the idea.<\/p>\n Let\u2019s pause here to note: Sometimes the employee does stuff like this for a justifiable reason, sometimes for a bad reason, and sometimes it\u2019s kind of \u201cin between.\u201d So there may be malicious intent, but you shouldn\u2019t just assume<\/em> that.<\/p>\n Anyway, Paula Payne does a forensic review of Dawn\u2019s laptop, which reveals everything Dawn did, including copying the 300 files to the thumb drive.<\/p>\n Let\u2019s pause again to note: You\u2019d think by now every employee would understand that everything they do on a computer leaves an electronic trail, so there\u2019s generally no hiding the fact that they took company documents. But no. They don\u2019t. And that reality keeps me fully employed.<\/p>\n The lawyer for Paula Payne Windows sends Dawn Davis a nastygram saying we\u2019ve caught you red-handed and you\u2019d better turn over all your devices and accounts to our forensic expert immediately, or we\u2019ll sue. Sue, I tell you, sue!<\/p>\n Let\u2019s suppose Dawn doesn\u2019t cooperate. \u201cWorking at that place sucked after the private equity firm bought it, and they stiffed me on my last commissions,\u201d she tells her lawyer. \u201cI\u2019m not about to give them anything!\u201d<\/p>\n So there\u2019s a lawsuit. And the first thing Paula Payne\u2019s lawyer does (after the obligatory \u201cemergency\u201d TRO hearing) is send a request for production of documents. Including a request for Dawn to turn over the thumb drive and any personal computer she connected it to for examination by a forensic expert.<\/p>\n Dawn\u2019s lawyer objects, citing Weekley Homes<\/em>. \u201cWeekley Homes<\/em> requires a threshold showing that Dawn defaulted on her discovery obligations before direct access may be ordered,\u201d her lawyer writes, \u201cand there has been no such showing here.\u201d<\/p>\n More specifically, Weekley Homes<\/em> requires showing four things to get a direct access order:<\/p>\n (1)\u00a0 the responding party has defaulted on its discovery obligations;<\/p>\n (2)\u00a0 less intrusive means would be inadequate to obtain the relevant information;<\/p>\n (3)\u00a0 the requested direct access is likely to result in identifying relevant information to be produced; and<\/p>\n (4)\u00a0 direct access will not impose an undue intrusion on the responding party.<\/p>\n Weekley Homes<\/em>, 295 S.W.3d at 317-22.<\/p>\n Undue intrusion can occur, for example, if the court order doesn\u2019t include a protocol for protecting the responding party\u2019s private or privileged documents.<\/p>\n Paula Payne\u2019s lawyer files a motion to compel and responds. \u201cThis is a trade secrets lawsuit where the thumb drive at issue contains the very documents that Plaintiff claims Defendant stole,\u201d she argues. \u201cThe Weekley Homes<\/em> standard simply does not apply.\u201d<\/p>\n So what is the trial court to do?<\/p>\n The defendant\u2019s argument is that the Weekley Homes<\/em> standard applies generally to all civil suits, including suits alleging misappropriation of confidential information or trade secrets.<\/p>\n There is nothing in the Weekley Homes<\/em> opinion indicating its standard is limited to any particular type of lawsuit, or that it doesn\u2019t apply to trade secrets suits.<\/p>\n Furthermore, the policy concerns behind the Weekley Homes<\/em> standard apply just as much when a defendant is accused of taking the plaintiff\u2019s documents.<\/p>\n Suppose the plaintiff accuses the defendant of stealing a hard copy of a confidential customer list. The plaintiff serves a request to come into the defendant\u2019s house to search his file cabinets for the list. This would never be allowed!<\/p>\n But a request for direct access to an electronic device is just as invasive, in principle. In some ways, considering the sheer amount of personal information that could be found on an electronic device, it is even more<\/em> invasive.<\/p>\n That\u2019s why the Texas Supreme Court said a request for direct access is to an electronic device is \u201cparticularly intrusive and should be generally discouraged, just as permitting open access to a party\u2019s file cabinets for general perusal would be.\u201d Weekley Homes<\/em>, 295 S.W.3d at 317.<\/p>\n The plaintiff, on the other hand, will cite the part of Weekley Homes<\/em> that approvingly cites federal case law allowing direct access to devices when the use of the device to take the plaintiff\u2019s documents is part of the cause of action at issue. See id<\/em>. at 319.<\/p>\n Plus, the lawsuit at issue in Weekley Homes<\/em> had nothing to do with allegations of taking the plaintiff\u2019s documents, the plaintiff will argue.<\/p>\n In response, the defendant will cite cases that applied the Weekley Homes<\/em> standard to departing employee cases involving allegations like misappropriation of trade secrets. See, e.g.,<\/em> In\u00a0re\u00a0Methodist Primary Care Group<\/em>, 553 S.W.3d 709, 717pinna (Tex.\u00a0App.\u2014Houston [14th Dist.] 2018, orig. proceeding); In re Pinnacle Engineering, Inc<\/em>., 405 S.W.3d 835, 842-44 (Tex. App.\u2014Houston [1st Dist.] 2013, orig. proceeding).<\/p>\n These cases applied the Weekley Homes <\/em>standard, apparently assuming it applies to cases involving allegations of misappropriation of company documents. But until recently, there was no clear answer to the question.<\/p>\n Now there is.<\/p>\n The plaintiff in 4X Industrial<\/em>, Russell Marine, obtained a trial court order requiring production of two electronic storage devices by a former employee of the plaintiff who allegedly used the two devices to take company documents. 4X Industrial<\/em>, __ S.W.3d at __, 2024 WL 333798 at *4.<\/p>\n In the court of appeals, Russell Marine argued that the Weekley Homes<\/em> standard did not apply, or that if it did, the standard had been met. Id<\/em>. at *5.<\/p>\n Specifically, Russell Marine contended that Weekley Homes does not apply \u201cbecause the information it seeks from the [former employee\u2019s] Devices is the subject matter of the lawsuit.\u201d Id<\/em>. at *6. It cited Weekley Homes<\/em>\u2019 acknowledgment that direct access is more likely to be allowed when there is a direct relationship between the device and the claims. Id<\/em>.<\/p>\n \u201cEffectively,\u201d the court of appeals said, \u201cRussell Marine asks us to recognize a plaintiff\u2019s automatic <\/em>right to directly access electronic storage devices when the claims are for misappropriation of trade secrets and there is an indication that trade secrets were taken electronically.\u201d Id<\/em>.<\/p>\n The court of appeals declined to do this: \u201cWe do not read Weekley Homes<\/em> as suggesting that examination of another party\u2019s electronic storage device is automatic in any type of case, including cases alleging misappropriation of trade secrets. Surrendering an electronic storage device for examination by another litigant is particularly intrusive no matter what claims are at issue. Importantly, the availability of electronic discovery is always subject to a balancing test.\u201d Id<\/em>.<\/p>\n \u201cIn any given case,\u201d the court said, \u201cconsideration of the relevant interests may counsel against direct access to an electronic storage device because the production of documents from the device may prove adequate without a need to examine the device itself.\u201d Id<\/em>.<\/p>\n The court of appeals noted Weekley Homes<\/em>\u2019 acknowledgment of federal cases amenable to allowing direct access when there is a direct relationship between the electronic storage device and the claim itself. Id<\/em>. \u201cThis result makes sense when considering the balancing of relevant concerns as applied to trade secrets theft cases,\u201d the court said, \u201cbut neither Weekley Homes<\/em> nor the cases it discusses suggest that a misappropriation of trade secrets plaintiff has an automatic right to conduct a forensic examination of electronic storage devices.\u201d<\/p>\n Then the court noted that both the Fourteenth Court of Appeals and the First Court of Appeals had applied the Weekley Homes<\/em> standard to similar cases involving allegations such as theft of trade secrets. See id<\/em>. (citing Methodist Primary Care Group<\/em> and Pinnacle Engineering).<\/p>\n Accordingly, the court held that the Weekley Homes<\/em> standards applied.<\/p>\n Fully appreciating the importance of the 4X Industrial<\/em> decision may require some familiarity with the use\u2014and overuse\u2014of direct access orders by Texas trial courts in departing employee lawsuits.<\/p>\n The unfortunate trend, at least in some trial courts, was to treat a request for direct access to a defendant\u2019s devices as almost automatic in a case where the plaintiff alleges a former employee took company documents and put them on a personal device.<\/p>\n And shouting \u201cbut Weekley Homes<\/em>, Your Honor!\u201d didn\u2019t always work. Trust me.<\/p>\n In fairness, there is some<\/em> logic to ordering a former employee to turn over a device that allegedly has the company\u2019s documents on it. But immediately jumping to a direct access order is improper, for reasons Weekley Homes<\/em> addressed. There are hurdles the plaintiff should have to clear before obtaining such an intrusive remedy.<\/p>\n Unfortunately, it had become common for both the requesting lawyers and judges to brush aside the requirements of Weekley Homes<\/em> in this type of case.<\/p>\n Some lawyers would request direct access to devices in their first request for production of documents, before there was any possibility that the responding party had defaulted on its discovery obligations. And some trial court judges tended to assume they had the authority to order direct access in a trade secrets case as long as they thought it was fair and expedient.<\/p>\n But that\u2019s not how it works. The 4X Industrial<\/em> decision has now made that clear. We should thank the lawyers for the 4X Industrial<\/em> defendants for that!<\/p>\n _________________________<\/p>\n Zach Wolfe (<\/em>zach@zachwolfelaw.com<\/em><\/a>)<\/em>\u00a0<\/em>is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm (<\/em>zachwolfelaw.com<\/em><\/a>). Thomson Reuters has named him a Texas Super Lawyer\u00ae for Business Litigation every year since 2020.<\/em><\/p>\n These are his opinions, not the opinions of his firm or clients, so don\u2019t cite part of this post against him in an actual case. Every case is different, so don\u2019t rely on this post as legal advice for your case. <\/em><\/p>\n \u00a0<\/p>\n<\/p><\/div>\n\n","protected":false},"excerpt":{"rendered":" Court Holds the Weekley Homes Standard Applies The Houston Court of Appeals (14th) has held that the plaintiff in a trade secrets lawsuit is not automatically entitled to a forensic examination of a defendant\u2019s device that was allegedly used to take the defendant\u2019s alleged trade secrets. In re 4X Industrial, LLC, __ S.W.3d __, No. […]<\/p>\n","protected":false},"author":1,"featured_media":78745,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[4507,410,17899,19533,12872,25801,39868,6075,9792],"dealstore":[],"offerexpiration":[],"class_list":["post-78744","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal","tag-computer","tag-court","tag-exams","tag-forensic","tag-houston","tag-lawsuits","tag-reigns","tag-secrets","tag-trade"],"yoast_head":"\nRequests for \u201cDirect Access\u201d in Trade Secrets Litigation<\/strong><\/h3>\n
Does Weekley Homes<\/em> Apply to Trade Secrets Suits?<\/strong><\/h3>\n
Houston Court of Appeals Directly Rejects Argument That Weekley Homes<\/em> Does Not Apply to Trade Secrets Litigation <\/strong><\/h3>\n
Why the 4X Industrial<\/em> Decision is Important <\/strong><\/h3>\n
<\/p>\n