In Re Himanshi Raizada v. the State of Texas

Petition for Writ of Mandamus Conditionally Granted, Stay Lifted, Motion
Denied as Moot, and Memorandum Opinion filed January 17, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00941-CV

IN RE HIMANSHI RAIZADA, Relator

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
387th District Court
Fort Bend County, Texas
Trial Court Cause No. 20-DCV-278410

MEMORANDUM OPINION

On December 15, 2023, relator Himanshi Raizada (“Himanshi”) filed a
petition for writ of mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221;
see also Tex. R. App. P. 52. In the petition, relator asks this Court to compel the
Honorable Janet Heppard, presiding judge of the 387th District Court of Fort Bend
County, to vacate the trial court’s November 27, 2023 order requiring Himanshi to
turn over her phone for forensic examination. We conditionally grant the petition.
I. BACKGROUND

The underlying proceeding concerns an adversarial divorce with contested
issues on custody and property division. Trial is scheduled for January 16, 2024.

A. Vivek’s requests for production and Himanshi’s responses and/or
objections
During the course of discovery, real party in interest Vivek Raizada’s
(“Vivek”) requested production of Himanshi’s WhatsApp communications.

1. First request for production number 49

Vivek requested in his first request for production the following:
49. WhatsApp chat transcripts – All WhatsApp chat transcripts, with
any attached media (including pictures or videos) between
HIMANSHI RAIZADA and any other person. The instructions for
downloading the transcripts are as follows . . . .
In response, Himanshi responded, without objection, that “[a]fter diligent search,
no items were located that are responsive to this request.” Himanshi filed a first
supplemental response, providing as follows:

Responsive documents are produced in Drop Box Folder named
Raizada Production Docs and Bates numbered ‘Raizada RFP 000150
through and including 000786.’ Additional information is being
produced in response to this request that is not in a format that
supports Bates labeling.

In a second supplemental response, Himanshi further answered:

SECOND SUPPLEMENTAL RESPONSE: Documents responsive to
this request in Respondent’s possession are produced herein as Bates
Numbers RESP HR 2ND SUPP RRFP 000086 to RESP HR 2ND SUPP
RRFP 000243 and as the following audio/video file folders:

2
RFP 49- Videos- whatsappchatwithanjalikapoor
RFP 49- Videos- whatsappchatwithmyhubby

Himanshi provided a fifth supplemental response that answered “[d]ocuments
responsive to this request in Respondent’s possession are produced herein as Bates
Numbers RESP HR 5th SUPP RRFP 000086 to RESP HR 5th SUPP RRFP
000095.” In a ninth supplemental response, Himanshi answered that “I have sent
my whatsapp data to your office.”

2. Second request for production number 1

In a second request for production, Vivek requested Himanshi’s phone to be
turned over for forensic inspection:

Second Request for Production Number 1:

1. A copy of all digital images including images of Petitioner,
Respondent or any child the subject of this and all metadata (including
but not limited to date, time and location photo and when image was
taken) associated with such digital images that were produced. If you
are unable to produce the metadata for each digital image, please
provide the hard drives of your home computer(s)[,] office
computer(s), and your cellphone(s) and any other electronic devices in
your possession and access to Eric Devlin at Lone Star Forensic
located at 800 Wilcrest, Suite 175, Houston, Texas 77042.
Himanshi objected to Vivek’s second request for production as follows:

Objection is made to this request in that this request as [sic]
overbroad, vague, unduly burdensome and harassing in that the
information sought constitutes a fishing expedition as that term is
defined in Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989).

3
Objection is made to the production request to the extent it subjects
Respondent to undue burden, unnecessary expense, harassment, or
annoyance. Tex. R. Civ. P. 192.6(b).

Objection is made to the production request to the extent it subjects
Respondent to an invasion of personal, constitutional, or property
rights. Tex. R. Civ. P. 192.6(b).

The discovery sought is not relevant and is not calculated to lead to
any discoverable matter.

Thereafter, Himanshi supplemented her objections with the following:

Subject to and without waiving the foregoing objections, Respondent
responds as follows:
Provided are 71 digital images, along with the attached 24 page listing
of photos with corresponding bates label and image name.

B. Vivek’s motion to compel and trial court order
On October 31, 2023, Vivek filed a first amended motion to compel
discovery and for sanctions, seeking to compel Himanshi’s complete responses to
the requests for production discussed above.1 In his motion, Vivek noted that
Himanshi did not object to request for production number 49; however, Himanshi
only produced messages for a limited time period. Vivek requested that she be
ordered to produce any and all responsive documents or, in the alternative, produce
her cell phone for forensic inspection. With respect to Himanshi’s objections to
his second request for production number 1, Vivek maintained that the objections

1
Vivek contends that in September 2023, Himanshi filed a motion to reconsider confirmation of
an arbitration award and, within the motion, inserted screenshots of alleged WhatsApp messages between
relator and Vivek that relator had not produced. According to Vivek, the messages would have been
responsive to Vivek’s request for production number 49. Thereafter, Vivek filed an amended motion to
compel and for discovery sanctions.
4
were invalid and that she failed to produce metadata for the images produced.
Vivek argued that Himanshi’s objections should be overruled and that she should
be required to produce all documents responsive to the request, including all
metadata associated with each digital image. In the alternative, Vivek requested
that Himanshi be ordered to produce her cell phone for forensic examination.

On November 27, 2023 the trial court granted Vivek’s amended motion to
compel and ordered Himanshi to turn over her phone for forensic examination.

1. VIVEK RAIZADA’s First Request for Production #49:

HIMANSHI RAIZADA is ORDERED to produce her cell phone to
Eric Devlin during regular business hours at Lone Star Forensics,
located at 800 Wilcrest, Suite 175, Houston, Texas 77042 on or before
5:00 p.m. on or before November 27, 2023. IT IS ORDERED that
Eric Devlin is given 48 hours from the date and time of delivery of the
cell phone to perform a forensic evaluation of the WhatsApp chat
transcript, with any attached media (including pictures and videos)
between Himanshi Raizada and Vivek Raizada and between Himanshi
Raizada and Anjali Kapoor from the date the petition for divorce was
filed (November 20, 2020) through the present, including any
communications that have been deleted.

2. Attorney’s fees, costs and expenses incurred by VIVEK
RAIZADA in association with the preparation and prosecution of this
Motion will be considered at the time of final trial.

Himanshi did not comply with the trial court’s order. On December 13, 2023,
Vivek filed a motion for enforcement. Additionally, on December 15, 2023, Vivek
filed a motion for sanctions for spoliation of evidence.2

2
According to Vivek, on December 18, 2023, Himanshi served her 6th supplemental response to
disclosures which included an “forensic expert” CV for Aran Hughes, and a July 17, 2023 invoice from
Vidoc Razor, LLC for forensic services of her cell phone. Himanshi has not provided Vivek with that
forensic analysis.
5
On December 15, 2023, Himanshi filed this petition for writ of mandamus as
well as a motion for temporary relief. This Court stayed the trial court’s order
compelling production and requested Vivek’s response to Himanshi’s petition for
writ of mandamus.
II. ANALYSIS
Himanshi argues that the trial court abused her discretion “in ordering
Himanshi to turn over her phone for forensic examination, without restriction,
without guidelines for the protection of privileged information and other unrelated
sensitive data, without proof that there would be data found, and where Himanshi
had agreed to provide data and metadata targeted to the relevant issues, without
such intrusion.” Himanshi asserts that Vivek failed to establish his entitlement to
directly access her electronic devices under the standards articulated in Weekley
Homes and its progeny. See In re Weekley Homes, 295 S.W.3d 309 (Tex. 2009)
(orig. proceeding); see also In re Shipman, 540 S.W.3d 562 (Tex. 2018) (orig.
proceeding); In re Methodist Primary Care Group, 553 S.W.3d 709 (Tex. App.—
Houston [14th Dist.] 2018, orig. proceeding). Himanshi further contends that she
lacks an adequate remedy by ordinary appeal and that mandamus relief is
appropriate.
Vivek filed a response in opposition to the petition as well as a motion for
expedited consideration, noting trial is scheduled for January 16, 2024. Vivek
maintains that the trial court’s order was entered within its broad discretion. Vivek
asserts that the trial court’s order does not violate the principles set forth in
Weekley Homes and Shipman. Vivek argues that Himanshi had three years to
search herself for the records requested. He further notes that Himanshi did not
object to the request for production number 49, but, instead, provided incomplete
6
responses. Vivek had requested WhatsApp messages between he and relator from
December 1, 2015, to present; however, relator only produced messages for the
time period of February 12, 2022 to May 12, 2022. Additionally, Vivek asserts
that he had requested WhatsApp messages between relator and her friend, Anjali
Kapoor, from December 1, 2015, but only received from relator messages for the
time period of June 27, 2021 to November 8, 2021. Vivek claims that, applying
the proper procedure in Weekley Homes, the trial court signed an appropriately
narrow order. Vivek asserts that the trial court order limited the scope of the
forensic evaluation to only Whatsapp messages between Himanshi and Vivek and
between Himanshi and Kapoor during the pendency of this divorce—the date the
petition for divorce was filed (November 20, 2020) to present. Vivek further
maintains that “[u]like Shipman, this case involves more than ‘skepticism about
[respondent]'s production of the relevant records.’” According to Vivek, Himanshi
has relied on purported messages that she did not produce in discovery. Vivek
argues that this fact, coupled with his own forensic examination of his and
Kapoor’s phones, renders the question of whether Himanshi has failed to comply
with discovery requests and/or spoliated or fabricated evidence concrete and
feasible, not merely “skeptical.” Vivek contends that, unlike the overreaching
order in Shipman, the underlying trial court order here does not broadly require
examination of all of Himanshi’s electronics for a period scanning almost two
decades. Vivek request that this Court expeditiously deny Himanshi mandamus
relief.

7
A. Mandamus standard of review

To obtain mandamus relief, a relator generally must show both that the trial
court clearly abused its discretion and that the relator has no adequate remedy by
appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (orig. proceeding) (per
curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004)
(orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision
so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or
if it clearly fails to analyze the law correctly or apply the law correctly to the facts.
In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302-03 (Tex. 2016) (orig.
proceeding) (per curiam); In re Cerberus Cap. Mgmt. L.P., 164 S.W.3d 379, 382
(Tex. 2005) (orig. proceeding) (per curiam). The appellate court reviews the trial
court’s application of the law de novo. See Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992) (orig. proceeding). The relator must establish that the trial court
could reasonably have reached only one decision. Id.

A discovery order, including one requiring production of electronic data and
information, that compels production beyond the rules of procedure is an abuse of
discretion for which mandamus is the proper remedy. See In re Nat’l Lloyds Ins.
Co., 507 S.W.3d 219, 223 (Tex. 2016) (orig. proceeding) (per curiam); Methodist
Primary Care Grp., 553 S.W.3d at 714. The harm that a party will suffer from
being required to relinquish control of its data for forensic inspection, and the harm
that might result from revealing private conversations, trade secrets, and privileged
or otherwise confidential communications, cannot be remedied on appeal. See
Weekley Homes, 295 S.W.3d at 322-23.

8
B. Law applicable to the production of electronic storage devices

Weekley Homes explained the standards for granting an expert access to data
on another party’s electronic storage device. As examinations of that sort are
“particularly intrusive,” they are “generally discouraged” and should not be
ordered routinely. Id. at 317; Methodist Primary Care Grp., 553 S.W.3d at 717.

As a threshold to granting direct 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.’” Shipman, 540
S.W.3d at 567 (quoting Weekley Homes, 295 S.W.3d at 317). The requesting party
should also show that the responding party’s production has been inadequate and
that a search of the opponent’s electronic storage device is reasonably likely to
reveal responsive information. See Weekley Homes, 295 S.W.3d at 317, 319-21;
Methodist Primary Care Grp., 553 S.W.3d at 718. This burden is “high,”
Shipman, 540 S.W.3d at 569, and courts do not rely on “‘mere skepticism or bare
allegations that the responding party has failed to comply with its discovery
duties.’” Id. at 568 (quoting Weekley Homes, 295 S.W.3d at 318).

When examination of a party’s electronic storage device is appropriate, only
a qualified expert should be afforded access, and the least intrusive means of
providing relevant, responsive information should be employed. Weekley Homes,
295 S.W.3d at 316, 318. A party from whom discovery is sought is entitled to
protection from an unreasonable invasion of personal, constitutional, or property
rights. See id. at 322; see also In re VERP Inv., LLC, 457 S.W.3d 255, 261 (Tex.
App.—Dallas 2015, orig. proceeding). Courts must address these privilege,
privacy, and confidentiality concerns. Weekley Homes, 295 S.W.3d at 318.
9
Here, the record reflects that the trial court could have reasonably found that
Himanshi defaulted at least in part on her discovery obligations to search for and
produce responsive electronic data on her phone; that her production has been
inadequate; and that a further search of Himanshi’s phone could recover relevant
materials. See Weekley Homes, 295 S.W.3d at 317; Methodist Primary Care Grp.,
553 S.W.3d at 720; In re Clark, 345 S.W.3d 209, 212 (Tex. App.—Beaumont
2011, orig. proceeding) (per curiam). However, the record does not reflect that the
trial court signed an order compelling relator to produce the requested discovery
prior to the trial court’s November 27, 2023 order compelling relator to turn over
her phone for forensic examination.

As such, it does not appear that the trial court considered whether less
intrusive means (e.g., an order compelling relator to produce the requested
discovery, an order excluding the allegedly non-produced, fabricated messages, an
order allowing Vivek to produce evidence through his own forensic expert as to
WhatsApp messages exchanged between relator and Vivek and/or relator and
Kapoor, etc.) will suffice short of turning over Himanshi’s phone for forensic
examination. See Weekley Homes, 295 S.W.3d at 316, 318-19, 321-22; In re
Wilcox, No. 09-20-00271-CV, 2021 WL 1031141, at *4 (Tex. App.—Beaumont
Mar. 18, 2021, orig. proceeding) (mem. op., per curiam) (court did not consider
less intrusive measures); Methodist Primary Care Grp., 553 S.W.3d at 720 (trial
court did not consider whether less intrusive measures would suffice).

Moreover, an order compelling production of an electronic storage device
must contain provisions to protect the responding party’s privacy and privileges, as
well as the confidentiality of non-responsive information. See Weekley Homes,
10
295 S.W.3d at 318-19; In re Pinnacle Eng’g, Inc., 405 S.W.3d 835, 846 (Tex.
App.—Houston [1st Dist.] 2013, orig. proceeding). The trial court must also
consider whether less intrusive means would suffice. Weekley Homes, 295 S.W.3d
at 318-19; Methodist Primary Care Grp., 553 S.W.3d at 720. Here, however, the
challenged order does not contain any mechanism or protocol to protect
Himanshi’s privacy, privileges, or the confidentiality of non-responsive
information. Weekley Homes, 295 S.W.3d at 318-19; Pinnacle, 405 S.W.3d at
846. When the order, as here, fails to address these interests, mandamus is
appropriate. Methodist Primary Care Grp., 553 S.W.3d at 721-23; Pinnacle, 405
S.W.3d at 846 (mandamus conditionally granted when order did not explain how
expert would protect relators’ privacy or privilege concerns); Clark, 345 S.W.3d at
213-14 (mandamus conditionally granted when order did not provide mechanism
through which responding party could withhold from discovery any privileged or
confidential information).

We hold that the trial court abused its discretion in compelling Himanshi to
turn over her cell phone for forensic inspection without providing any mechanism
through which Himanshi can withhold from discovery any documents or
information that is privileged or confidential and by failing to consider less
intrusive means. See Tex. R. Civ. P. 196.4; Weekley Homes, 295 S.W.3d at 322-
23; Pinnacle, 405 S.W.3d at 846.

III. CONCLUSION

Having determined that the trial court abused its discretion and Himanshi
does not have an adequate remedy by appeal, we conditionally grant Himanshi’s
petition for writ of mandamus as explained above and direct the trial court to
11
vacate its November 27, 2023 order compelling Himanshi to produce her phone for
forensic examination. We are confident the trial court will act in accordance with
this opinion and a writ will issue only if the trial court fails to do so. Our
December 15, 2023 stay order is lifted. Vivek’s motion for expedited
consideration is denied as moot.

PER CURIAM

Panel consists of Chief Justice Christopher and Justices Wise and Jewell.

12