Today, the Supreme Court of Texas established the limits for discovery of cell phone data like text messages, e-mails and other data in a tort case arising from a specific incident.  Because cell phone data is often sought in employment cases, the case is significant for employment cases arising over single incidents.

In In re Kuraray America, Inc., the plaintiffs in a mass-tort chemical release and fire case sought, and the trial court ordered production of, the cell phone records for the Kuraray employees working in the control room and the supervisors supervising those employees for a period of six weeks and four months prior to the incident.  The plaintiffs’ basis for seeking the records was an attempt to show that at the time of the incident, employees were distracted by cell phone activity or that they had a history or pattern of using cell phones in the control room when they should be monitoring the plant’s systems.

In conditionally granting the mandamus relief, the Supreme Court established the standard for the discovery of cell phone records in a case tied to a specific event (i.e., the plant fire).  The Court held that:

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 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.  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.

Because the trial court ordered production of cell phone data in the weeks and months leading up to the event without a showing that the employee’s use of his cell phone on the date of the incident could have been a contributing cause of the chemical release, it abused its discretion.

The Court noted that examination of the data for the date of the incident showed that three of the five employees had no cell phone usage on the date of the incident and therefore no additional discovery of those employees’ data was relevant.  For the two employees that had limited cell phone usage, before the granting broader temporal discovery on the data, the plaintiffs “bore the burden to show, and the trial court had an obligation to consider, whether the use –its nature, duration and frequency in the given context –could support a finding that cell-phone use contributed to the release.”  The Court went on to hold that, “in the absence of such a showing, it was an abuse of discretion to order production of the employees’ earlier cell-phone data.”

The Court’s per curiam opinion is here.