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New guidance on discovery of cell-phone usage in Texas litigation

On Behalf of | Feb 17, 2023 | Business Litigation

Does the whole world get to see that awesome “Tacocat” meme your friend just texted you? If you or your business are later involved in a lawsuit, the answer is maybe. But new guidance makes it less likely.

In the cellular age of life and business, it is increasingly common in lawsuits to see a discovery request like: “Produce all data or records concerning Defendants use of a cellular device for their entire lifetime ever and forever.” Maybe less extreme, but nonetheless an entirely overbroad request.

Until recently, there was little guidance on what data was relevant and trial courts were left to just figure it out. But a new mandamus opinion from the Texas Supreme Court establishes a controlled framework for the discovery of cell-phone usage in litigation.

In re Kuraray America, Inc., No. 20-0268, __ S.W.3d __ (Tex. Dec. 9, 2022) arose out of a chemical release at a plant. Over about seventeen hours, a reactor became over-pressurized, triggering various monitoring alarms in a control room. Ultimately, vapor released from the reactor ignited and injured numerous employees. Multiple personal injury lawsuits were filed, and then consolidated.

The plaintiffs initially did not plead that cell-phone usage contributed to the incident. Nevertheless, the plaintiffs sought cell-phone data from at least five employees of the defendant: two supervisors and three control-room operators. The request was made as “all information collected from all phones post incident,” with no time limitation. While the defendant offered to produce more limited information from the cell phones, the plaintiffs moved to compel based on the expansive request.

After multiple hearings and rounds of briefing, the trial court entered its final order compelling production limited to six-weeks of data for the two supervisors and four-months of data for the three control room operators.

In the per curiam mandamus action, the Court significantly restricted the discovery and pronounced the new framework for discovery of cell-phone usage. Like most legal standards, the framework is a three-part inquiry.

“First, to be entitled to production of cell-phone data, the party seeking it must allege or provide some evidence of cell-phone use by the person whose data is sought at a time when it could have been a contributing cause of the incident on which the claim is based.

Second, “[i]f the party seeking the discovery satisfies this initial burden, the trial court may order production of cell-phone data, provided its temporal scope is tailored to encompass only the period in which cell-phone use could have contributed to the incident.” The Court further explained: “In other words, a trial court may not, as this stage, order production of a person’s cell-phone data for a time at which his use of a cell phone could not have been a contributing cause of the incident.”

Third and finally, “[o]nly if this initial production indicates that cell-phone use could have contributed to the incident may a trial court consider whether additional discovery regarding cell-phone use beyond that timeframe may be relevant.”

The Court then applied this framework to the case at hand and demonstrated the detailed and fact specific inquiries that district courts will need to conduct in the future. The record before the Court showed that three of the five employees had no cell-phone use during the relevant seventeen-hour period when the reactor was destabilized. Accordingly, it was an abuse of discretion for the trial court to compel any of their cell-phone data. As to the remaining two employees, the Court observed that one employee had “ten seconds of cell-phone activity” and the other “received two texts and responded to one.” The Court charged the trial court with determining whether the use—“its nature, duration, and frequency in the given context”—could support a finding that cell-phone use contributed to the reactor release. “In the absence of such a showing, it was an abuse of discretion to order production of the employees’ earlier cell-phone data.” Although it is now for the trial court to decide, the Court strongly suggested that the data should not be produced because it is not relevant.

The new cell-phone framework will impact numerous types of cases: industrial accidents, motor vehicle and trucking collisions, and almost every other personal injury or negligence-based case. Navigating the discovery process within this new framework requires experienced and knowledgeable attorneys. The attorneys at Burke Bogdanowicz PLLC have decades of experience representing businesses and individuals in high-stakes disputes throughout Texas and across the country.

TL;DR: Call Burke Bogdanowicz PLLC at 214-516-6692 for your business litigation needs.