In Re Magdoline Elhindi

Supreme Court of Texas
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No. 23-1040
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In re Magdoline Elhindi,
Relator

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On Petition for Writ of Mandamus
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PER CURIAM

In this invasion-of-privacy case, the trial court ordered Magdoline
Elhindi to produce a video in discovery. She asserts that complying with
the order could constitute a crime and seeks leave to send the video to
law enforcement to review and clear the video of criminality before it is
produced to opposing counsel. We conditionally grant relief and direct
the trial court to modify its order to allow Elhindi to provide the video
to the Federal Bureau of Investigation for a child sexual abuse material
(CSAM) determination before requiring her to produce it in discovery.

I

Magdoline Elhindi sued Hamilton Rucker for statutory and
common law invasion of privacy. Elhindi alleges that Rucker filmed her
while she engaged in sexual activity, and then distributed the video to
another person without Elhindi’s knowledge or consent. The trial court
entered an agreed mutual temporary injunction prohibiting the parties
from disclosing intimate material of one another and from destroying
evidence.
During discovery, Rucker sought videos in Elhindi’s possession
that depicted him. Elhindi objected to the production of one such video,
on the ground that it contained material “unlawful in nature” and was
therefore “unlawful” to produce. In response to Rucker’s motion to
compel, Elhindi alleged that Rucker had provided the video to her and
told her that it depicted him engaged in sex with a minor. 1 Elhindi,
however, stated she knows neither the identity nor the age of the
individual depicted in the video with Rucker. She thought she had
deleted the video upon receipt, but upon rediscovering it, she contacted
the FBI.
At the hearing on the motion, Rucker’s counsel represented to the
trial court that the woman depicted in the video was not a minor and
that the FBI would not conduct further investigation. The trial court
then ordered Elhindi to produce the video subject to the existing
injunction prohibiting outside distribution of it.
Shortly afterward, however, the FBI requested the video from
Elhindi. The FBI cautioned Elhindi against further distribution or

1 Rucker argues that Elhindi untimely asserted her objections in the

affidavit she filed and thereby waived them. Affidavits supporting objections
to discovery must be “served at least seven days before the hearing or at such
other reasonable time as the court permits.” TEX. R. CIV. P. 193.4(a) (emphasis
added). Although Elhindi’s affidavit was late, it is evident that the trial court
considered its merit. The trial court superseded its first order compelling
Elhindi to produce the video with a second order permitting her to disclose the
video to the FBI upon production to opposing counsel. It is from this order that
we direct relief.

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sharing of the video until the FBI investigated, as CSAM is illegal to
possess and distribute. Elhindi moved for leave to depart from the trial
court’s injunction against distribution of discovery materials and
provide the video to the FBI for its investigation.
Rucker responded by filing a declaration from his wife, in which
she attested to a meeting during which Elhindi declared to her that
Elhindi possessed a video of Mrs. Rucker—not an unknown minor—
having sex with Rucker. 2 Elhindi filed a responsive declaration,
attesting that Mrs. Rucker is not the person depicted in the video at
issue. Without making a finding as to whether the video is CSAM, the
trial court ordered Elhindi to produce it to Rucker and granted her leave
to provide a copy to the FBI after Rucker confirmed receipt.
Elhindi sought mandamus relief from the court of appeals, which
denied her petition. This Court initially denied Elhindi’s petition but
granted rehearing.

II

Discovery “should be limited by the court” if “the burden or
expense of the proposed discovery outweighs its likely benefit, taking
into account the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the litigation,
and the importance of the proposed discovery in resolving the issues.”
TEX. R. CIV. P. 192.4. A trial court must determine whether discoverable
material is protected before ordering production because “once the

2 The declaration contains the necessary jurat identifying the affiant

and stating that it is true and correct “under penalty of perjury.” See TEX. CIV.
PRAC. & REM. CODE § 132.001(c).

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matter has been disclosed, it cannot be retracted or otherwise
protected.” West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978); see id. at
245-46 (holding the trial court abused its discretion by ordering
production before considering application of the attorney-client
privilege). Mandamus relief is available when a trial court compels
production beyond permissible bounds. In re Weekley Homes, L.P., 295
S.W.3d 309, 322 (Tex. 2009). Given that the trial court ordered Elhindi
to produce the video before either determining itself that the video is not
CSAM or permitting law enforcement to make such a determination, we
hold that the order compelling production of it was error.
Under these facts, compelling discovery before a CSAM
determination risks further harm to the alleged minor. See United
States v. Hamilton, 78 M.J. 335, 339 (C.A.A.F. 2019) (noting that the
victim impact statement “highlighted the ongoing trauma and
revictimization that [the child] suffers every time someone else sees the
pictures or videos depicting her image” (internal punctuation omitted)).
The Code of Criminal Procedure has established safeguards to protect
the interests of minors in criminal CSAM proceedings. TEX. CODE CRIM.
PROC. art. 39.15(c). While alleged CSAM must be made “reasonably
available” to a defendant, the defendant’s attorney, and testifying
experts, they may review it only “at a facility under the control of the
state.” Id. art. 39.15(d). Federal courts follow a similar procedure. See
United States v. Kimbrough, 69 F.3d 723, 731 (5th Cir. 1995) (“The
Government’s offer to make the [alleged CSAM] available for inspection
but not to allow them to be copied was reasonable.”). The trial court
erred in ordering production of alleged CSAM in a civil case without

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imposing similar safeguards. See In re CI Host Inc., 92 S.W.3d 514, 517
(Tex. 2002) (“[W]e are mindful that resolution of this discovery dispute
may affect more than the immediate parties to this litigation . . . . It
therefore falls upon the trial court to give serious consideration to these
interests.”). If the parties and the trial court determine that this piece
of evidence is critical to the resolution of the case, we recognize that trial
may be delayed while the FBI undertakes its review. The risks to the
alleged minor, however, require proceeding with caution.
Elhindi asserts that producing the video could constitute
transmission of CSAM, a state and federal crime. 3 Even assuming,
however, that criminal prosecution resulting from compliance with a
court order is doubtful, a delay for law enforcement to make a CSAM
determination presents little burden to the discovery process for claims
admittedly not involving the individual depicted in the video. 4

3 In Texas, a person who “knowingly or intentionally” transmits “visual

material that visually depicts a child younger than 18 years of
age . . . engaging in sexual conduct,” knowing that the material depicts such
conduct, commits a first- or second-degree felony. TEX. PENAL CODE
§ 43.26(a)(1), (e), (g). Under federal law, a person who “knowingly receives or
distributes . . . any child pornography using any means or facility of interstate
or foreign commerce or that has been mailed, or has been shipped or
transported in or affecting interstate or foreign commerce by any means,
including by computer . . . shall be fined under this title and imprisoned not
less than 5 years.” 18 U.S.C. § 2252A(a)(2)(A), (b)(1).
4 Rucker urges that Elhindi could not be criminally liable for producing

the video because she denies knowing whether it contains CSAM. Elhindi
responds that “knowledge” under the federal statute includes willful
ignorance, and Elhindi maintains under oath that Rucker told her the video
depicts a minor. See Tilton v. Playboy Ent. Grp., 554 F.3d 1371, 1378 (11th
Cir. 2009) (“We have long recognized that the knowledge element of
a . . . statute can be proved by demonstrating either actual knowledge or

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Lastly, Rucker argues the trial court implicitly resolved disputed
facts and the credibility of the affiants in his favor and mandamus relief
is inappropriate when it rests on resolution of factual disputes. See
Hooks v. Fourth Ct. of Appeals, 808 S.W.2d 56, 60 (Tex. 1991). But the
trial court made no factual determination as to whether the video was
CSAM. It instead deferred to the FBI to investigate the allegation only
after Elhindi produced the video to Rucker. We cannot accede to a
finding that the trial court did not make. The trial court erred in
ordering production without first determining whether this sensitive
material required special treatment. See West, 563 S.W.2d at 246.

* * *

The trial court’s refusal to delay discovery for further inspection
elevated the immediate production of a peripherally relevant video over
an undue risk to the alleged minor. The “burden” of the trial court’s
order requiring immediate production “outweighs its likely benefit.” See
TEX. R. CIV. P. 192.4(b). Accordingly, and without hearing oral
argument, see TEX. R. APP. P. 52.8(c), we conditionally grant mandamus
relief and direct the trial court to modify its order to allow Elhindi to
provide the video to the FBI and receive a CSAM determination before
compelling its production in discovery.

OPINION DELIVERED: December 31, 2024

deliberate ignorance.” (quoting United States v. Hristov, 466 F.3d 949, 952
(11th Cir. 2006))). Regardless, any benefit derived from the failure to secure a
CSAM determination in these circumstances before producing the video is
outweighed by the risk to the putative minor and the video’s limited, if any,
relevance to the claims at hand.

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