Published in Legaltech News

Discovery overbreadth and the resulting excessive litigation costs are particularly common in multidistrict and other complex litigation. The Texas Supreme Court addressed this problem with respect to cell phone data in In re Kuraray America, Inc., — S.W.3d —, 2022 WL 17542911 (Tex. Dec. 9, 2022). The court held that discovery of cell phone data must be limited to information that the requesting party demonstrates is relevant to the case.

Had the court not done so, it would have cost the defendant $3.8 million to identify and produce the cell phone usage data of just five employees, based on the mere speculation of plaintiffs’ counsel that cell phone distraction could have been a causal factor in an industrial accident.

Kuraray pertains to an industrial accident in 2018, in which ethylene released at a chemical plant caught fire, resulting in multiple injuries and lawsuits. Plaintiffs sought cell phone data on the devices of three plant control room board operators and two supervisors, with no limitation on time period. Plaintiffs argued that the data was needed to determine whether employees in the control room might have been distracted by their phones when they should have been alert to changing plant conditions that led to the ethylene release.

The operator of the plant produced data regarding the board operators’ cell phone activity starting 17 hours before the ethylene release, during which time pressure built up in the reactor that ultimately resulted in the release and fire. The production included data that the cell phones generated automatically and during users’ non-interaction with the cell phones (e.g., data showing alerts; automatic connections to the internet; and upon receiving, but not reading, messages). It also included data that users generated (e.g., making a call; using an application; sending a text message; or searching the internet). The plant operator argued that this usage information proved that the employees were not distracted by cell phone use.

The plant operator also submitted evidence that it is complicated, time-consuming, and expensive to distinguish between, on the one hand, cell phone usage generated automatically or otherwise without users’ interaction with the cell phone and, on the other hand, cell phone usage resulting from users’ interaction with the phone. Sorting between the non-user versus user data requires human examination of the data artifacts associated with each use.

Plaintiffs opposed limiting the scope and time of the cell phone data, arguing that data from the days, weeks, and months before the release was relevant because Kuraray allegedly failed to supervise its employees and failed to implement adequate policies and procedures to protect against cell phone misuse. Moreover, plaintiffs sought full downloads of all cell phone data—not just texts and email.

The trial court largely sided with plaintiffs, ordering discovery of the cell phone usage data (both user-initiated and non-user initiated) of the supervisors for six weeks and of the board operators for four months before the accident. The plant operator brought a motion for reconsideration based in part on evidence that assessing the user-initiated usage for the periods of time the trial court ordered would take approximately 15,245 hours and cost $3.8 million. Although plaintiffs’ counsel had offered at the hearing to pay for the costs of the review, they declined to do so upon learning of the price tag. The trial court denied the motion for reconsideration. It did not address cost shifting.

The Texas Supreme Court rejected plaintiffs’ arguments and directed the trial court to vacate its orders. In its decision, the court stated that while trial courts enjoy discretion in determining what is relevant to the subject matter, “that discretion is not unlimited” and the “liberal bounds” of discovery “have limits.” The court stated that a discovery request is impermissibly overbroad if it is not “reasonably tailored to include only matters relevant to the case.” It further observed that “[i]t is the burden of the party seeking discovery to demonstrate that the requested documents are relevant and therefore discoverable.”

In addition to general relevance principles, the Texas Supreme Court’s analysis benefited from the existence of a fairly well-developed jurisprudence in the Texas appellate courts regarding the discovery of cell phone data. The court cited several appellate court decisions holding that, to be entitled to production of cell phone usage 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 giving rise to the claim. In other words, it cannot be based on mere suspicion that cell phone distraction may have been a factor. If the party seeking the data satisfies that initial burden, the court explained that the trial court then may order its production “provided that its temporal scope is tailored to encompass only the period in which cell phone use would have contributed to the incident.”

The court found that the plaintiffs failed to show that cell phone usage was a contributing cause of the accident. Plaintiffs merely argued cell phone distraction may have been a factor in the accident. Absent a showing that cell phone usage contributed to the accident itself, the court held that cell phone data during the prior six weeks (for the supervisors) and four months (for the operators) was irrelevant and not discoverable, and that the trial court had abused its discretion in ordering the discovery.

While Kuraray is not a binding precedent outside of Texas, it should be an important persuasive authority in other jurisdictions to preclude discovery of cell phone data that a party only suspects could be relevant.

Gareth T. Evans is a partner at Redgrave LLP and is an eDiscovery litigator and advisor who is passionate about information law and collaborates with clients to identify and achieve their business goals.

The views expressed in this article are those of the authors and not necessarily those of Redgrave LLP or its clients.