Limitations on Retrieving Cell Phone Data
Cassandra Diaz
737.304.7254
cassandra@doyleseelbach.com
Andrew J. Schumacher
737.270.9951
andrew@doyleseelbach.com
As we become more attached to our cellular phones, questions arise concerning parties’ ability to obtain cell phone data in litigation. The Supreme Court of Texas recently ruled on a case regarding the relevancy and admissibility of cell phone data, and identified the following criteria:
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.
If this element is satisfied, 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. In other words, a trial court may not, at 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.”
Only 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.
Shortly thereafter, the First Court of Appeals applied the findings of the Supreme Court case. The In re Huang court found that the trial court correctly determined that the plaintiff established the relevancy of the requests and that Haung failed to produce the requested discovery. However, the First Court granted mandamus relief because the trial court’s order failed to include a protocol or guidelines to protect personal, confidential, or sensitive data, clarified the limitations of production once the cell phone data was proven to be relevant and admissible.
In May 2024, the San Antonio Court of Appeals found a trial court abused its discretion in ordering production of cell phone data for a time period of four hours before the motor vehicle collision and for failing to include in the order any adequate protections for the cell phone owner’s privacy interest. The San Antonio Court of Appeals also held that the trial court’s reliance on Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 290 (2022) was misplaced because Dobbs explicitly stated it should not be understood to “cast doubt on precedents that do not concern abortion.”
The Kuraray, Mesilla Valley Transp., and Huang cases establish that a party must plead or show evidence that the use of a cell phone was a contributing cause of the incident at issue, specify the temporal scope of the compelled production, and encompass only the time the cell phone usage could have contributed to the incident to obtain cell-phone data. These cases further clarified that a witness does not have to observe the party’s cell phone usage but that facts implying cell phone usage could have contributed to or caused the incident are sufficient. Additionally, any order compelling such production must be limited to a temporal period of time for which the device could have contributed to the incident and must afford the cell phone owner adequate protection of their privacy
Below is a more detailed analysis of the three cases.
Supreme Court Case
The Supreme Court of Texas decided on December 9, 2022, cell-phone data is only relevant and admissible if the party seeking the production of the information has shown evidence or alleged that cell-phone usage may have been a contributing cause of the incident that is the basis of the suit.
Introduction
The trial court ordered Kuraray America Inc. (hereinafter “Employer”) to produce cell phone data from the phones of five employees.” In re Kuraray Am., 656 S.W.3d 137 (Tex. 2022) at 139. The order instructed the Employer “to produce cell-phone data for the six-week period” for the two supervisors and “four-month period” for the other three employees before the chemical release. Id. Employer “challenge[d] the trial court’s orders… on the ground the orders require production of information as to which relevance has not been established and thus are impermissibly overbroad.” Id. The Supreme Court agreed and granted the writ. Id.
Facts
In May 2018, a chemical reactor in Kuraray’s ethylene vinyl-alcohol copolymer plant “became over-pressurized and released ethylene vapor that caught on fire.” Id. The plant was undergoing maintenance and equipment replacement for several weeks before the incident occurred.
On May 19, 2018, from around 12:53 a.m. to 7:00 a.m., when the temperature began to drop inside the plant’s reactor, R-1201. The drop in temperature “caus[ed] the ethylene inside to condense from a gas to a liquid.” Id. at 140. During this time, Jeremy Neal, the board operator, was working until 5:30 a.m. when Troy Moorer, another board operator, took over until 10:00 a.m.
During Moorer’s shift, the temperature heated up again very rapidly. This caused the high-pressure alarm to go off in the control room at 8:51 a.m. Moorer tried to stabilize the pressure by opening the pressure control valve. Shortly after, at “9:00 a.m., a second alarm, known as the ‘Hi Hi alarm,’ activated and continued sounding every ten minutes.” Id. Moorer responded by opening the pressure control valve more. Moorer continued to respond to each alarm, unaware that this particular reactor, R-1201, had a lower maximum allowable pressure than the other reactors.
Around 10:00 a.m. supervisor, Joe Zoller, instructed Moorer to monitor another reactor and replaced him with board operator, Joe Jones. Supervisor Joe Zoller monitored the board operators and was constantly in the control room since 10:00 a.m.
While Jones was monitoring the reactor, “the pressure in the R-1201 caused a rupture disk to burst at 10:28 a.m., releasing ethylene vapor that ignited and injured several nearby workers.” Id. The board operator’s direct supervisor, Mike Bowlin, “was not present in the control room on May 19” when the incident occurred. Id.
Procedural History
“Plaintiffs sought production of ‘all information collected from all phones post incident’ with no time limitation.” Id. They asserted the data was relevant because the release may have been caused by cell-phone usage. The Employer’s policy prohibited the abuse of cell phone usage in the control room. They argued the information was not relevant or discoverable under Texas Rule of Civil Procedure 192.3.
After the trial court heard the parties’ arguments, it “ordered [the Employer] to produce cell-phone usage data for the board operators going back to January 23, the date of the anonymous email regarding ‘cell phone abuse.’” Id. at 141. It also ordered the “cell-phone data for Zoller and Bowlin, the two supervisors, going back to April 6, the date on which [the Employer] started the turnaround. Id.
Employer “moved for reconsideration” by asserting “that cell-phone use was not a contributing cause of the release” since “the data” did not show any of the five employees were using their cell phones when the incident occurred. Id. The cell phone data was irrelevant because there was no evidence of a causal connection between the release and the cell-phone usage. Plaintiffs argued since “[the Employer] had a history of issues with cell-phone abuse and distracted board operators.” Id. The trial court again sided with the Plaintiffs and denied reconsideration. However, it did order details on “how the data should be produced for each of the five employees.”
The Employer sought mandamus relief from these orders.
Analysis
“Rule 192.3 limits discovery to matters that are ‘relevant to the subject matter of the pending action.’” Tex. R. Civ. P. 192.3(a) It is the burden of the party seeking discovery to demonstrate that the requested documents are relevant and therefore discoverable under Rule 192.3. In re TIG Ins.Co., 172 S.W.3d 160, 167 (Tex. App.-Beaumont 2005, orig. proceeding).
The Plaintiffs failed to plead cell phone usage by the Employers’ employees caused the release and/or negligence. In re Kuraray Am., 656 S.W.3d at 140. A party seeking cell-phone data must allege or show evidence that cell-phone usage contributed to the cause of the incident at issue. Id. at 142. If this initial burden is met, cell-phone data may be ordered within the time it could have contributed to the incident. Id.
The cell-phone usage of the Employer’s employees and its failure to supervise would be “relevant only if there is some evidence that cell-phone use could have been a contributing cause of the release itself.” Without any evidence, any earlier data would be irrelevant and not discoverable.
Joe Jones, Joe Zoller, and Mike Bowlin “had no cell-phone use during this seventeen-hour period at any time when it might have distracted them from taking action to prevent the release.” Id. at 144. Jeremy Neal and Troy Moorer’s records do show some cell-phone use while the R-1201’s temperature dropped. Id. at 145. If their cell-phone data were to show that it could have been a contributing cause, then evidence outside the time period may be relevant. However, there is no evidence, therefore, the trial court abused its discretion.
Conclusion
The Supreme Court “concluded that the trial court abused its discretion by ordering production of [the Employer’s] employees’ cell-phone data for a six-week or four-month period without a showing that each employee’s use of his cell phone on May 18 or 19 could have been a contributing cause of the ethylene release.” Id. at 143. The Plaintiffs did not allege in their petition that cell-phone use was a contributing cause of the incident. Id. The trial court’s ruling was based on Plaintiffs’ argument that the release MAY have been caused by cell-phone usage; therefore, it was overbroad and not discoverable. Id. The petition for writ of mandamus is granted and the trial court is ordered to vacate its “orders requiring [the Employer] to produce cell-phone data” for all five of the employees. Id. at 145.
Recent Cases
In re Huang
In a recent case, In re Huang, No. 01-22-00594-CV, 2023 WL 8262837 (Tex. App.—Houston [1st Dist.] Nov. 30, 2023, orig. proceeding), the Court of Appeals granted Pete Zhongren Huang’s (hereinafter “Huang”) petition for writ of mandamus to vacate the trial court’s order granting James R. Huey’s (hereinafter “Huey”) Motion to Compel the “production of Huang’s cell phone for inspection and imaging. Id. at 1.
Facts
Huang crashed into Huey’s pickup, resulting in injuries that led to this lawsuit. “Huey alleged that Huang was distracted while driving, based on multiple accounts that the traffic lights were not functioning at the time of the collision, Huang's speed of approximately 50 mph without braking when he entered the intersection, and the fact that Huang had more than one cell phone in the cab of his truck at the time of the accident.” Id. at 2. Huey requested the imaging of Huang’s cell phone to prove that Huang was distracted by using his cell phone when the incident occurred.
Procedural History
Huey’s requested “‘cellular image[s] of [Huang's] phone[s] for the 2-hour interval, one hour preceding the wreck, and one hour following the wreck.’” Id. at 3. He also proposed that Huang “‘have ten days or longer to designate "confidential information" from the extract of information and to provide a privilege log of those items designated as confidential.’” Id. Huang produced his cell phone bill from the date of the incident with redactions that did not have any relevant information. Id.
Huey responded by filing a Motion to Compel forensic imaging from both of Huang’s cell phones. The Trial court granted the motion and ordered “Huang's cell phones to be imaged "under a narrow window of time, using an appropriate protocol to protect any confidential, private, or sensitive information . . . within thirty (30) days of the entry of this Order.’” Id. at 4.
Huang filed a Writ of Mandamus in response, asserting the Trial court abused its discretion in many issues. The court of appeals decided that the “trial court abused its discretion by failing to include limitations as to temporal scope of production of cell phone data and protection of confidential, sensitive, or personal data.” Id. at 17.
Analysis
The Court of Appeals “conclude[d] that Huang has not established the trial court abused its discretion in ordering Huang to produce the cell phones.” Id. at 7. Huang argued that Huey did not show that Huang did not produce the requested data, the cell phone bill was inadequate, and “that there is a ‘reasonable likelihood that a search of the [device at issue] would reveal the information [the party] sought.’” Id. at 6.; In re Weekley Homes, 295 S.W.3d 309, 320-21 (Tex. 2009); see also Kuraray Am., Inc., 656 S.W.3d at 142. There was evidence that Huey requested the imaging in his request for production, attempted to retrieve the information through the cell phone carrier, and requested information around the time of the incident, therefore negating Huang’s argument. Huang, at 6-7.
Huang also argued “that discovery may not be compelled without a showing that relevant, discoverable information appropriately bears on the claims at issue” and that there were no witnesses. Id. 4-5, 9. The Court of Appeals “conclude[d] that Huang has not established an abuse of discretion by the trial court as to the threshold showing for compelling production of the cell phone data.” Id. at 10. Relying on Kuraray, the court noted that Huey alleged in his petition that Huang’s negligence was caused because he was distracted and specifically asserted the fact that Huang had multiple cell phones, implying that Huang may have been using a cell phone at the time of the incident. Id. at 2, 9. The Court of Appeals points out that even if this case does not have witnesses like in Kuraray, Huey’s pleading asserted allegations that Huang was distracted, which could indicate he was distracted by his cell phones. Id. at 9-10.
The Court of Appeals nonetheless concluded that it was an abuse of discretion when the trial court “did not comply with the Texas Supreme Court and Rule 196 requirements that the ordered discovery must be specific, relevant, appropriately tailored in time and scope, and with adequate safeguards for confidential or sensitive information.” Id. at 10. Huang also asserts the “trial court did not ensure the inspection and copying of his cell phone data would utilize the least intrusive means.” Id.
In applying the rule in Kuraray, the trial court failed to “specify the temporal scope of the compelled production other than to say that the ‘cell phones be imaged under a narrow window of time . . ..’” Id. at 12. The trial court should have ordered the production “to encompass only the time in which the use of the phones could have contributed to the accident.” In re Weekley Homes, at 322.; In re Huang, at 12. The trial court did not provide any protocols or specific guidelines to protect Huang’s personal and/or confidential information. Id. at 13-14.
Conclusion
The Court of Appeals granted the petition for writ of mandamus on the grounds that the trial court abused its discretion. The abuse of discretion was “by failing to include limitations as to temporal scope of production of cell phone data and protection of confidential, sensitive, or personal data.” Id. at 17.
In re Mesilla Valley Transp.
In In re Mesilla Valley Transp., No. 04-23-01067-CV, (Tex. App.—San Antonio May 8, 2024, orig. proceeding), the Court of Appeals granted Mesilla Valley Transportation’s (hereinafter “MVT”) petition for writ of mandamus to vacate the trial court’s order granting John Rudd’s (hereinafter “Rudd”) Motion to Compel the “production of the cellular telephone(s) in use and/or in Robert Stowbridge’s possession at the time of the July 12, 2021 crash made the basis of the lawsuit.” Id. at 1.
Facts
Rudd alleges that Robert Stowbridge (hereinafter “Stowbridge”) caused injuries to him as a result of motor vehicle accident that occurred while Stowbridge was driving for MTV. Rudd’s petition alleged that Stowbridge was distracted by his cell phone while driving. Rudd served a Request for Production seeking:
The cellular telephone(s) in use and/or in Robert Stowbridge’s possession at the time of the July 12, 2021, crash made the basis of this suit. The cellular telephone(s) should be produced to Flashback Data, 4029 South Capital of Texas Highway, Suite 224, Austin, Texas 78704.
Flashback Data will examine the phone to specifically look for activity four hours before and around the time of the crash, examine the Call Detail Record (CDR) around the time of the crash and map out the location of the device(s) in the CDR, and Data will forensically analyze the mobile phone for communication and location around the same time as the CDRs.
MVT and Stowbridge objected to the request and cited legal authority related to an owner’s subjective, reasonable and legitimate expectation of privacy in their cell phone. Rudd filed a motion to compel.
At the hearing, Rudd argued that video existed evidencing Stowbridge’s use of a cell phone at the time of the collision. Counsel for MVT and Stowbridge did not appear to dispute the representation. The trial transcript further reflected that the trial court relied on the United States Supreme Court’s decision in Dobbs in overruling MTV and Stowbridge’s objections to privacy concerns. The trial court entered an order that provided in relevant part:
[Stowbridge and MVT’s] objections are overruled as to Request 1 . . . . With regard to Request 1, Counsel for the parties shall confer on the logistics of the production of the cell phone. If an agreement cannot be reached, the [trial court] will consider the issue at a contested Motion to Enter hearing. [Rudd’s] forensic examiner, Flashback Data, LLC, must return Robert Stowbridge’s cell phone to counsel for Robert Stowbridge within 48 hours of receipt of Robert Stowbridge’s cell phone.
MVT and Stowbridge filed a petition for mandamus relief.
Analysis
Rudd’s counsel argued that the language in the order referencing the parties shall confer on logistics meant that the appeal was not ripe because the parties had not yet conferred. The San Antonio Court of Appeals held that the logistics language simply meant conferring on the details as to the time and place to produce the phone, not conferring on the production required once the expert received the cell phone. Accordingly, Stowbridge’s contentions were ripe for review.
The San Antonio Court of Appeals first addressed the trial court’s reliance on Dobbs determining it was inapplicable to the discovery dispute. The Court of Appeals relied upon the language in Dobbs limiting it to the constitutional right to abortion and “not to cast doubt on precedents that do not concern abortion.”
The Court of Appeals then went through the elements of In re Kuraray acknowledging that Rudd’s petition alleged Stowbridge acted negligently while using his cell phone. Further, there were references at the hearing, which Stowbridge and MVT did not deny, that video existed showing Stowbridge’s use of a cell phone at the time of the accident. Thus, the court held the trial court was within its discretion to order the production of the cell phone “provided the timeframe of the production is temporal in scope and is tailored to encompass only the period in which the cell phone use could have contributed to the collision.”
The Court of Appeal ultimately held that the trial court abused its discretion in ordering production of the cell phone “untethered to a temporal period of time in which the cell phone could have contributed to the collision.” In making its decision, the Court of Appeals noted that Rudd failed to establish why he needed data four hours before the collision. Additionally, the order failed to provide any privacy protections necessary to ensure protection of Stowbridge’s privacy interests from unnecessary disclosure.
Conclusion
The Court of Appeals granted the petition for writ of mandamus on the grounds that the trial court abused its discretion. The abuse of discretion was by ordering “production of Stowbridge’s cell phone data untethered to a temporal period of time in which Stowbridge’s cell phone use could have contributed to the collision,” and by failing “to incorporate adequate protections for Stowbridge’s privacy interests.”
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Cassandra Diaz
737.304.7254
cassandra@doyleseelbach.com
Andrew J. Schumacher
737.270.9951
andrew@doyleseelbach.com