In re CI Host, Inc

In In re CI Host, Inc., 92 S.W.3d 514, 46 Tex. Sup. Ct. J. 199 (Tex. 2002) (orig. proceeding), the Supreme Court found the relator failed to meet its burden to support its objection to an order requiring production of computer backup tapes containing allegedly privileged information. Id. at 514, 516-17. The Court stated, "Any party making an objection or asserting a privilege must present any evidence necessary to support the objection or privilege. Tex. R. Civ. P. 193.4(a). The trial court should then determine whether an in camera inspection is necessary; if so, the party seeking protection must segregate and produce to the court the materials it seeks to protect from disclosure." CI Host, Inc., 92 S.W.3d at 516. The Supreme Court then described the procedural background of the case, including the lack of proof by relator, CI Host, Inc., as follows: At the first discovery hearing, CI Host had the burden to present evidence supporting its objection, see Tex. R. Civ. P. 193.4(a), but did not present any evidence to the court. At the second hearing, CI Host offered CEO Faulkner's affidavit generally describing the nature of CI Host's business and stating summarily that the backup tapes contained information such as customers' e-mails, trade secrets, and business documents. It also offered testimony from its attorney, John Harvey, that he had seen customer lists and customer indexes and directories on two of the March 1st tapes. None of this general testimony provides the factual basis to sustain CI Host's objection that all of the information on the tapes is "the contents of a communication" or is "in electronic storage" on the tapes and thus protected from disclosure by the ECPA. See 18 U.S.C. 2702. . . . Thus, in light of CI Host's failure to produce evidence to support its ECPA objection or to segregate and produce the information it has now admitted is not protected by the ECPA, we cannot conclude that the trial court abused its discretion in overruling that objection and ordering the tapes produced. (Id. at 516-17.)