Technology in the Texas Business Court

In establishing the Texas Business Court, the Texas Legislature sought to create a specialized judicial venue that would “streamline resolutions of business disputes[.]”¹

To that end, the originally-proposed text of H.B. 19 would have required the Business Court to “use the most advanced technology feasible when necessary and appropriate to facilitate expeditious proceedings in matters brought before the court.”² While this language was not made part of the Business Court’s final enabling statute, the Business Court has adopted procedures regarding discovery of electronically stored information (ESI) and generative AI that reflect an awareness of recent technological trends in complex business litigation.

Requiring agreed ESI protocols

Rare among Texas state trial courts, the Business Court requires parties to agree on a protocol for preserving, collecting and producing electronically stored information (ESI).  The requirement for parties to negotiate an ESI protocol is common in many courts handling complex cases. Federal Rule of Civil Procedure 26(f) requires litigants to meet and confer early in a case to craft a discovery plan and discuss parameters for preservation and production of ESI. Similarly, the Delaware Chancery Court requires litigants to develop a discovery plan addressing ESI collection and production.³

ESI protocols regularly address technical aspects of ESI collection and production, such as identification of document custodians and non-custodial data sources, the development of search terms for identifying relevant documents, acceptable document production formats and exchange of metadata. 

The standard scheduling orders of the Third, Fourth, Eighth and Eleventh Business Court Divisions contain a common provision requiring an ESI protocol in each case. That scheduling order provision requires “the parties [to] meet and confer on an ESI protocol, including the parameters for preservation of ESI and the procedures the parties will employ to determine search terms and methodology for identifying ESI” in response to discovery requests.⁴ The orders also provide that the parties should agree on a file production format that “will not degrade the searchability of documents as part of the production process.”⁵ The Eighth Division’s procedures specify that in negotiations regarding an ESI protocol parties should address:

1. the specific sources, location and estimated volume of ESI;
2. whether ESI should be searched on a custodian-by-custodian basis, and, if so, the identity and number of custodians and relevant search parameters;
3. plans and schedules for any rolling production;
4. deduplication of data;
5. whether any devices need to be forensically examined and, if so, a protocol for the examination;
6. the production format of documents;
7. the fields of metadata to be produced; and
8. how data produced will be transmitted to other parties (e.g., in read-only media; encrypted or password protected)

Tex. Bus. Ct., Eighth Division – Court B, Court Procedures § 3(C). Additionally, the Eighth Division, Court B requires counsel, within 14 days after filing the proposed scheduling order, to discuss with their clients the “custodians,” “sources” and “locations” of potentially discoverable ESI,  as well as the duty to preserve potentially discoverable ESI and “the logistics, burden, and expense” of doing so. Id.  § 3(D). 

The First Division also requires agreed ESI protocols. See Tex. Bus. Ct., First Division – Court B, Form Scheduling Conference Report, Discovery Control Plan, and Scheduling Order § 4 (“The parties have discussed proposed ESI production plans and agree to the preliminary exchanges stated in an accompanying Preliminary ESI exchange Plan and Order signed by counsel or a non-represented party”); Tex. Bus. Ct., First Division – Court A, Court Procedures § II(B) (“Parties who cannot reach an agreement on discovery limitations may request a setting for entry of a discovery control plan or ESI protocol[.]”). And as of the date of this article, the First Division, Court B also provides parties with a sample ESI protocol. That protocol contains detailed model provisions relating to search term methodology, production format, metadata exchange and other production parameters.

Requiring parties to develop an ESI protocol is not typical for Texas state district courts, even those that oversee complex commercial litigation. As practitioners know, a laissez-faire approach to ESI discovery can result in unproductive conferences between the parties and costly discovery disputes involving collection of custodian files and exchange of document metadata. 

The Business Court’s mandate for ESI protocols signals an awareness that, given the technical sophistication of modern e-discovery practice, requiring commercial parties to proactively agree on collection and production can expedite discovery and avoid costly expenditures by all parties.   

Local Rule regarding AI use

The Business Court’s local rules also demonstrate that the Court is aware of the growing prevalence of artificial intelligence (AI) tools in complex litigation. The Court’s Local Rule 10(c) provides that in practice before the Business Court, “use of artificial intelligence is not prohibited, but the filing attorney or party is independently responsible for the accuracy of all filings and must comply with all legal and ethical duties[.]”⁶  

The Business Court’s AI rule comes as courts have grappled with the use of AI technology by practitioners. An Eastern District of Texas federal court recently sanctioned an attorney for failing to verify AI-generated authority used in the attorney’s briefing. Norman v. Beaumont I.S.D., et al., No. 1:24-CV-00007 (E.D. Tex. Mar. 17, 2025) (Dkt. 39). Yet at the same time, as noted in Norton Rose Fulbright’s 2025 Litigation Trends Survey, “organizations are increasingly supportive of outside counsel’s use of AI to augment litigation work[,]” particularly where such use may result in cost efficiencies.

Both the Eastern District of Texas and the Northern District of Texas have adopted verification and disclosure requirements regarding parties’ use of AI technology. See E.D. Tex. Local Rule AT-3 (providing that attorneys that use AI technology “must review and verify any computer-generated content to ensure that it complies with” applicable standards of practice); N.D. Tex. Local Rule 7.2(f) (requiring that parties disclose to the Court if a brief was prepared using generative AI and that a party who does not make such a disclosure thereby “certifies that no part of the brief was prepared using generative artificial intelligence”). 

These verification and disclosure requirements remain relatively rare among Texas state trial courts. A recent review of procedures and local rules published by Texas district courts in Harris, Dallas, Tarrant and Bexar counties revealed only one instance of guidance regarding the use of generative AI or other AI technologies by parties.

Thus, the Business Court’s adoption of Local Rule 10(c) reflects an understanding that companies and individuals with matters before the Court increasingly expect their counsel will responsibly deploy AI technology in their clients’ representation. The allowance for use of AI technology is likewise consistent with the Legislature’s aim of a forum where experienced practitioners will assist the Court in efficiently resolving disputes.

Conclusion

The Business Court’s embrace of technology in complex business disputes presents unique opportunities for the Business Court litigant. Norton Rose Fulbright’s Business Court Insider has and will continue to monitor technological developments across the Business Court’s divisions.