A state supreme court has vacated a trial court order that compelled the production of cell phone data gathered from defendant’s employees. The court held that because the plaintiffs’ pleadings had not mentioned cell phone use, the cell phone data plaintiffs sought was out of reach. The decision stands as a warning for practitioners—vague pleadings can doom later discovery efforts. ABA Litigation Section leaders are surprised by the court’s ruling and offer suggestions to practitioners about how to avoid a similar outcome.
In May 2018, at a chemical plant outside Houston, Texas, the temperature inside a reactor plunged then rose again, very quickly increasing pressure inside the reactor. Though employees scrambled to fix the problem, a “rupture disk” burst and ethylene poured out of the reactor and ignited. Several nearby workers were injured.
Some of those workers filed negligence claims, and their actions were transferred for consolidated pretrial proceedings. The plaintiffs served aggressive discovery requests demanding all data from cell phones used by several relevant plant employees. Some plaintiffs eventually moved to compel production of that cell phone data, asserting in their motion that the data was relevant because the incident was potentially caused by “cell phone usage and abuse by control-room board operators.”
After a hearing, the trial court ordered production of six weeks of cell phone data from two supervisors, and four months of cell phone data from three board operators. That production included not only text messages and photos, but also “usage data” showing when and potentially how employees were using their cell phones.
The defendant sought mandamus relief from the Texas Supreme Court, arguing that the trial court had abused its discretion “by ordering production without limitation.” The defendant argued that because the plaintiffs had failed to adequately establish relevance of the cell phone usage data, their discovery requests were impermissibly broad.
In In re Kuraray America, Inc., the Texas Supreme Court agreed. The court began its analysis by noting that even in their petitions, plaintiffs had failed to allege “that cell-phone use by anyone was a contributing cause of the release.” The court held that cell phone use could only have “made a difference in how events unfolded” if it occurred in the hours leading up to the reactor leak. The court concluded that the trial court should not have ordered production of cell phone data “without first undertaking a person-by-person analysis of whether cell-phone use within that time period could have been a contributing cause of the release.”
Litigation Section leaders were surprised with the outcome. “The Texas Supreme Court issued a thoughtful decision that is grounded in the relevance of the documents at issue, as the plaintiffs don’t appear to have provided any evidence that cell phone use was relevant. I find the case surprising only because courts frequently err on the side of granting discovery,” opines Joseph V. Schaeffer, Pittsburgh, PA, cochair of the Section’s Pretrial Practice & Discovery Committee.
The court’s discomfort with the production order may have stemmed, in part, from the type of records at issue, Schaeffer adds. “While the court’s opinion is broadly applicable to any scope-of-discovery argument,” Schaeffer explains, “there’s undoubtedly a sense, with cell phones, that there are greater privacy interests at stake.”
“This appears to be part of an ongoing trend in treating cell phone records differently and being much more reluctant to give comprehensive access to cell phone records,” agrees James H. Gilbert, New Orleans, LA, newsletter co-editor of the Section’s Pretrial Practice & Discovery Committee.
Ultimately, the Texas Supreme Court directed the trial court to vacate its orders requiring production of cell phone data. A late footnote in the opinion, however, offered the plaintiffs a glimmer of hope. The plaintiffs “ultimately may show themselves entitled” to further discovery of cell phone data, the court wrote, but only if they can show that cell phone use by on-site employees was “a potential contributing cause of the release.” With that showing made, the court suggested, “evidence of cell-phone use outside [that seventeen-hour] time period may become relevant.”
It is unclear what, if anything, the plaintiffs could do to clear that hurdle. “It’s difficult to imagine what ‘smoking gun’ type of evidence the plaintiffs could present,” Gilbert surmises. “Speculation that cell phone use might be relevant to an incident is not going to cut it.”
Section leaders offer advice to practitioners. “Plaintiffs should draft discovery with this kind of motion to compel in mind by ensuring that requests are linked to pleading allegations, for example,” suggests Schaeffer. “When objecting, defendants may ask how they can sever the link of contributing cause, meaning a court may decline to compel production in the end,” he adds.
