Technology • December 2023
The Supreme Court Of Texas Sets Parameters Governing Discovery Of Cellphone Data.
Written by Pierre Grosdidier
Plaintiffs logically seek discovery of the contents of accident partakers’ cellphones given these devices’ fabled propensity to distract their owners, sometimes tragically. In In re Kuraray America, Inc., the Supreme Court of Texas held that a party seeking production of cellphone data “must allege or provide some evidence” that cellphone use contributed to the incident for which discovery is sought.1 Even then, a court may only order production of cellphone data for the time window during which cellphone use “could have contributed to the incident.” At this initial stage, therefore, temporally broad cellphone content discovery is impermissible. Only if this initial production establishes a nexus between cellphone use and the incident may the court consider whether a broader temporal discovery request is justified.2
Kuraray suffered an accidental ethylene vapor release at its chemical plant in Pasadena. The ethylene ignited and the resulting fire caused multiple injuries that spawned numerous lawsuits. Plaintiffs asserted negligence claims against Kuraray but did not claim that cellphone use or abuse by Kuraray employees contributed to the accident.3 Nonetheless, deposition testimony from a supervisor indicated that Kuraray experienced occasional (but otherwise unspecified) cellphone use issues in the plant’s control room.
In discovery, plaintiffs sought all information collected by Kuraray from employee phones after the accident. Kuraray instead offered to produce relevant text messages and photographs from the phones of employees who had a connection with the accident. Plaintiffs moved to compel production, arguing that board operators’ cellphone use and abuse, and the ensuing distraction, were a potential cause of the release and, therefore, relevant to their claims and discoverable. They also asserted the relevance of evidence of the employees’ activities gathered from their phones before and during the accident.
The trial court eventually ordered production of cellphone data for three control room board operators starting four months prior to the release and for two supervisors starting six weeks prior to the release. On reconsideration, before it moved for mandamus, Kuraray maintained that the lack of nexus between the accident and the cellphone data made the latter irrelevant and their production beyond the scope of permissible discovery.4 The Supreme Court of Texas agreed.
Citing cases from the 12th Court of Appeals in Tyler and the 3rd Court of Appeals in Austin that addressed the scope of cellphone data production, the Supreme Court of Texas held that the relevant initial inquiry in this case is whether cellphone use distracted the employees and contributed to the release. Absent this nexus, employees’ cellphone use outside the incident’s timeframe and Kuraray’s enforcement of, or failure to enforce, its control room cellphone policies are “neither relevant nor discoverable.”5 Moreover, the court added, the trial court should have inquired about this nexus on an individual basis. The two supervisors and one of the board operators showed no cellphone activity that could reasonably have contributed to the release. Ordering earlier cellphone records in their case was, therefore, an abuse of discretion. The other two operators showed some, albeit minimal, cellphone activity during the timeframe before the release. Plaintiffs bore the burden, and the trial court was required to consider whether this use “could support a finding that cellphone use contributed to the release.” Accordingly, the Supreme Court vacated the trial court’s order to compel discovery.6 TBJ
PIERRE GROSDIDIER is a litigation attorney in Houston. He is certified in construction law by the Texas Board of Legal Specialization. Grosdidier’s practice also includes data privacy and unauthorized computer access issues and litigation. Prior to practicing law, he worked in the process control industry. Grosdidier holds a Ph.D. from Caltech and a J.D. from the University of Texas. He is a member of the State Bar of Texas, an AAA panelist, a registered P.E. in Texas (inactive), a member of the Texas Bar Foundation, a fellow of the American Bar Foundation, and the past chair (2022-2023) of the State Bar of Texas Computer & Technology Section. Grosdidier was elected medium-sized section representative to the State Bar of Texas Board of Directors for the 2023-2026 term.