Supreme Court of Texas, No. 20-0268 (December 9, 2022)
Per Curiam Opinion (linked here)
First, to be entitled to production of cell-phone data, the party seeking it must allege or provide some evidence of [i] cell-phone use by the person whose data is sought [ii] 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.
The Court then went on to explain step two of the process: “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”—for example, to show the employer’s negligent supervision or training.
Here, the record before the trial court actually negated, or at best did not demonstrate, that cell-phone use by the five employees was a contributing factor to the accident. The SCOTx therefore directed the trial court to vacate its order compelling production of the requested cell-phone usage data.