Warning: No Fishing Allowed! – Pt. 2: No, They Can’t Catch Cell Phones Either - JD Supra

Previously, we analyzed the due scope for find requests that asked for worker cause and intoxicant trial results.  In this article, we analyse a acold much potent find substance—cell telephone data. 

Everyone has a compartment phone, including, especially, and sometimes to the chagrin of their employers, employees.  Some person two; 1 idiosyncratic and 1 issued by their employer.  Given the ubiquity of compartment phones and the extended information they incorporate astir their owner—including, but not constricted to, location, communications, and compartment telephone use—it has go modular signifier for parties to request compartment telephone information beryllium produced successful discovery. 

Whether that information should beryllium produced astatine all, whose information should beryllium produced, and the due scope of that information is truthful often fertile crushed for disputes betwixt parties, arsenic that information contains a cross-section of accusation relating to idiosyncratic privacy, perchance privileged material, institution policies, determination making, and more.

The Supreme Court of Texas precocious dove into the morass of compartment telephone information find requests and provided employers overmuch needed guidance connected however to respond.  See In re Kuraray America, Inc., No. 20-0268, — S.W.3d —, 2022 WL 17542911 (Tex. Dec. 9, 2022).  It articulated 3 cardinal principles to usher employers done compartment telephone information discovery:

1. To beryllium entitled to compartment telephone data, the enactment seeking it indispensable amusement that the idiosyncratic whose information is sought was utilizing it astatine oregon astir the clip of the alleged incidental and that person’s compartment telephone usage could person been a contributing origin of the alleged incident.
2. If the seeking enactment satisfies that archetypal burden, an leader whitethorn person to nutrient compartment telephone information but tin bounds the scope of produced information to the clip that the compartment telephone could person contributed to the alleged incident.
3. If, and lone if, this constricted archetypal accumulation shows that the compartment telephone could person contributed to the incident, past the proceedings tribunal has discretion to grow the play and bid an leader to nutrient much data, but lone if determination is inactive immoderate transportation betwixt the expanded period, the use, and the alleged incident.

Production of compartment telephone information extracurricular of this model is presumed improper.  Along with providing much-needed guidance for compartment telephone information accumulation successful general, these rules should besides dissuade over-eager plaintiffs’ counsel from archetypal requesting an excessive play of compartment telephone information successful hopes that the proceedings tribunal volition divided the baby, chopped their petition successful half, and inactive bid accumulation of information extracurricular the play for the applicable incident.  The Court explicitly rejects this approach, and an leader faced with specified a petition should propulsion back, hard.

Bottom Line:

As ever successful a lawsuit involving the actions of employees, the leader is the large fish—they person the deepest pockets and the astir to lose.  Plaintiffs truthful often formed astir for arsenic overmuch ungraded arsenic they tin find, careless of that dirt’s transportation to the alleged incident, to effort to find 1 crumb of grounds that paints the leader successful a atrocious light, shows it did not travel modular protocols, policies, oregon mandates (even if that conscionable 1 clip oregon occurred years earlier the alleged incident), oregon is simply embarrassing for the leader (highly apt if the scope of requested compartment telephone information is wide enough).  If a plaintiff tin hook conscionable 1 text, 1 email, 1 call, they deliberation they tin filet the leader and equine a trophy astatine trial.

This determination ensures plaintiffs tin lone food successful tiny ponds with strict limitations and keeps cases focused connected the applicable issues.  If a plaintiff asks for compartment telephone information unconnected and irrelevant to the alleged incident, whether done clip oregon substance, an leader should entity and archer the plaintiff to food elsewhere.