Full Opinion (html_with_citations)

          Supreme Court of Texas
                            ══════════
                             No. 20-0268
                            ══════════

                     In re Kuraray America, Inc.,
                                Relator

   ═══════════════════════════════════════
           On Petition for Writ of Mandamus
   ═══════════════════════════════════════

                            PER CURIAM

      In this mandamus action arising out of a chemical release at a
plant, the trial court ordered Relator Kuraray America, Inc., the
defendant below, to produce cell-phone data from the employer-issued
phones of five employees. Two of the five employees are supervisors—
for them, the trial court ordered production of cell-phone data for the
six-week period before the chemical release. As to the remaining three
employees—control-room board operators who reported to the two
supervisors—the trial court ordered production of cell-phone data for the
four-month period before the release. Relator challenges the trial court’s
orders regarding production of all five employees’ cell-phone data on the
ground the orders require production of information as to which
relevance has not been established and thus are impermissibly
overbroad. We agree and conditionally grant the writ.
      Kuraray operates an ethylene vinyl-alcohol copolymer plant in
Pasadena. In May 2018, a chemical reactor became over-pressurized
and released ethylene vapor that caught on fire, resulting in multiple
injuries and lawsuits. The lawsuits were transferred to a multidistrict
litigation pretrial court for consolidated pretrial proceedings. See TEX.
GOV’T CODE § 74.162 (authorizing transfer of cases involving common
questions of fact for consolidated pretrial proceedings).
      The ethylene release occurred during a plant turnaround—a
scheduled stoppage of operations for maintenance and equipment
replacement—that began in early April 2018 and lasted many weeks.
About six weeks into the turnaround, between 12:53 a.m. and 7:00 a.m.
on May 19, 2018, the temperature inside one of the plant’s reactors, the
R-1201, dropped unexpectedly, causing the ethylene inside to condense
from a gas to a liquid. When the reactor’s temperature rose again, its
internal pressure rose rapidly. A high-pressure alarm went off at 8:51
a.m. in the control room where two Kuraray board operators were
monitoring the R-1201 and other reactors. Nine minutes later, around
9:00 a.m., a second alarm, known as the “Hi Hi alarm,” activated and
continued sounding every ten minutes. Within a few minutes after the
first alarm sounded, the board operator monitoring the R-1201 opened
a pressure control valve in an attempt to stabilize the reactor’s pressure
and then opened it more after the Hi Hi alarm was first activated. The
same board operator testified that he continued to respond to the
alarms, but he did not realize the R-1201 was as close as it was to its
maximum allowable pressure because he did not know that the R-1201’s
maximum was lower than that of the other reactors. The pressure in




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the R-1201 caused a rupture disk to burst at 10:28 a.m., releasing
ethylene vapor that ignited and injured several nearby workers.
      The five employees whose cell-phone data is in dispute had
different roles and levels of involvement in monitoring the R-1201 in the
hours before the ethylene release:
         Jeremy Neal was the board operator monitoring the R-1201
          from 5:30 p.m. on May 18 until his shift ended at 5:30 a.m. on
          May 19. Neal was thus on overnight duty when the R-1201’s
          internal temperature began dropping, but his shift ended
          hours before the alarms activated.
         Troy Moorer was the board operator monitoring the R-1201
          from 5:30 a.m. until about 10:00 a.m., when he was tasked
          with monitoring another reactor.
         Joe Jones, also a board operator, was initially monitoring
          other reactors that morning but was tasked with monitoring
          the R-1201 at around 10:00 a.m. when a supervisor instructed
          Jones to take over the R-1201 from Moorer.
         Joe Zoller, a supervisor and former board operator, was “in
          and out” of the control room that morning but was
          continuously present and “watching” the board operators
          starting at around 10:00 a.m.
         Mike Bowlin was the board operators’ direct supervisor but
          was not present in the control room on May 19.
      Plaintiffs asserted claims against Kuraray for negligence and
gross negligence, but they did not allege that cell-phone use by any
Kuraray employee constituted negligence or was a cause of the release.
For its part, Kuraray collected the company-issued cell phones of several
employees, including those working in the control room at the time of
the release, and copied the cell-phone data. Plaintiffs sought production
of “all information collected from all phones post incident,” with no time
limitation.   Kuraray initially offered to produce text messages and



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photographs concerning the release from the phones of several
employees who had some connection to the operations in the control
room or may have been present in the control room that morning.
      Instead, two separate groups of plaintiffs moved to compel the
production of all information collected from the cell phones. In their
motions, Plaintiffs asserted that this information is relevant because a
potential cause of the release was “cell phone usage and abuse by board
operators.” Plaintiffs also asserted that evidence “pertaining to the
activities of Kuraray’s employees during the startup of the line in
question, the night before the incident, the day of the incident, and the
incident itself, is highly relevant.” In support of their motions, Plaintiffs
presented Zoller’s deposition testimony to the effect that, in the months
before the release, Kuraray occasionally had a problem with employee
cell-phone use in the control room. Plaintiffs also presented deposition
testimony from Moorer that Kuraray had a policy prohibiting cell
phones in the control room, although Moorer later clarified that
Kuraray’s policy prohibited “abuse” of cell phones. In response, Kuraray
argued, among other things, that the information sought was not
relevant and therefore was not discoverable under Texas Rule of Civil
Procedure 192.3.
      At a hearing, Plaintiffs argued that the cell-phone information
was needed to determine whether employees in the control room might
have been distracted by their phones when they should have been
alerted to changing plant conditions that led to the release. In addition
to the deposition testimony referenced in their motions, Plaintiffs




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presented a January 23, 2018 email from an unknown sender1 to various
Kuraray supervisors expressing concerns about “cell phone abuse” by
board operators.     During the hearing, Kuraray agreed to produce
information regarding cell-phone activity by the board operators
starting at 5:30 p.m. the night before the release. The trial court instead
ordered Kuraray 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.” The court further ordered Kuraray to
produce cell-phone data for Zoller and Bowlin, the two supervisors, going
back to April 6, the date on which Kuraray started the turnaround.
       Kuraray moved for reconsideration. It asserted that its analysis
demonstrated that cell-phone use was not a contributing cause of the
release. In particular, Kuraray contends the data show that none of the
five employees was using a cell phone at a time when he should have
been responding to the R-1201 alarms or other warning signs. According
to Kuraray, the lack of any showing of a causal connection between
cell-phone use and the release makes the cell-phone data irrelevant,
rendering the trial court’s orders for production overbroad and beyond
the permissible scope of discovery.
       Plaintiffs responded by reiterating that they were entitled to the
cell-phone data because they had demonstrated that Kuraray had a
history of issues with cell-phone abuse and distracted board operators.
The trial court denied reconsideration. Further disputes regarding the

       1 The January 23 email was referenced during some of the depositions
and at the hearing on Plaintiffs’ motion to compel, but it appears from the
discussion that the email does not identify its sender. The email itself is not
in the mandamus record.




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scope of the order resulted in a third order detailing how the data should
be produced for each of the five employees. Kuraray seeks mandamus
relief from these orders.2
       “A discovery order that compels production beyond the rules of
procedure is an abuse of discretion for which mandamus is the proper
remedy.” In re Nat’l Lloyds Ins. Co.,
449 S.W.3d 486, 488
 (Tex. 2014).
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). While trial courts
enjoy discretion in determining what is “relevant to the subject matter,”
that discretion is not unlimited. See In re Nat’l Lloyds Ins. Co.,
507 S.W.3d 219, 223
 (Tex. 2016) (“What is ‘relevant to the subject matter’ is
to be broadly construed. These liberal bounds, however, have limits, and
‘discovery requests must not be overbroad.’” (citation omitted) (quoting
In re Nat’l Lloyds,
449 S.W.3d at 488
)).              A discovery request is
impermissibly overbroad if it is not “reasonably tailored to include only
matters relevant to the case.”
Id.
 at 223-24 (quoting Texaco, Inc. v.
Sanderson,
898 S.W.2d 813, 815
 (Tex. 1995)). 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);
see In re Dana Corp.,
138 S.W.3d 298, 302
 (Tex. 2004) (concluding that



       2 The challenged orders were issued by Judge Daryl Moore of the 333rd
District Court, who was appointed as the pretrial judge by the multidistrict
litigation panel. After Kuraray filed its mandamus petition, Judge Moore left
the bench, and the MDL panel assigned Judge Lauren Reeder of the 234th
District Court as the pretrial judge. We abated the case to allow Judge Reeder
to reconsider the challenged orders, see TEX. R. APP. P. 7.2(b), but she declined.




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a discovery request seeking insurance policies that predated plaintiffs’
exposure to asbestos was overly broad because plaintiffs failed to
establish the potential applicability of those policies to the lawsuit).
Where a discovery order compels production of “patently irrelevant or
duplicative documents,” there is no adequate remedy by appeal because
the order “imposes a burden on the producing party far out of proportion
to any benefit that may obtain to the requesting party.” In re CSX Corp.,
124 S.W.3d 149, 153
 (Tex. 2003) (quoting Walker v. Packer,
827 S.W.2d 833, 843
 (Tex. 1992)).
      Quite unsurprisingly, discovery requests for cell-phone data have
become commonplace in recent years. While our Court has not yet had
occasion to apply the legal principles governing discovery in this context,
our courts of appeals have grappled with the issue. From these cases,
we glean some key principles that should guide trial courts’ careful
management of cell-phone-data discovery.          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 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.3
In other words, a trial court may not, at this stage, order production of

      3 A trial court ordering production of cell-phone data should of course
also consider any objections by the producing party concerning the type or
subject-matter of the data requested, as well as any valid privacy,
confidentiality, or proportionality objections.




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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.
      Our courts of appeals have correctly granted mandamus relief
where trial courts ordered production of cell-phone data (1) without a
basis for concluding that cell-phone use may have contributed to the
incident on which the claim is based or (2) for a time period broader than
the time during which cell-phone use could reasonably be found to have
been a contributing cause of the incident. For example, in In re Padilla,
the Austin Court of Appeals granted mandamus relief when a trial court
ordered production of a driver’s cell-phone records for fourteen days
before and fourteen days after a car accident. No. 03-18-00477-CV,
2018 WL 4087733
, at *2 (Tex. App.—Austin Aug. 28, 2018, orig. proceeding).
The plaintiff initially sought the defendant driver’s cell-phone records
for the period encompassing thirty days before and thirty days after the
accident. Id. at *1. The defendants, for their part, agreed to produce
the driver’s cell-phone records for the period one hour before and one
hour after the accident. Id. The trial court split the proverbial baby,
ordering production of cell-phone records for the period fourteen days
before the accident and fourteen days after. Id. Much like in this case,
the plaintiff in Padilla argued the temporal scope of discovery should
not be limited to a narrow window immediately surrounding the
accident because she sought to show not only that the driver’s cell-phone
use might have caused the accident but also that the driver’s employer




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negligently failed to train its drivers or to create and enforce a policy
prohibiting cell-phone use while driving. Id. at *2. The court of appeals
disagreed, explaining that the plaintiff did not plead that cell-phone use
caused the accident, the plaintiff’s claimed right to cell-phone records
“presuppose[s] and depend[s] on the use of the cell-phone by [the driver]
at or near the time of the incident,” and the plaintiff’s request “seeks
information well beyond that timeline and scope.” Id. Accordingly, it
directed the trial court to vacate its order requiring production of the
phone records. Id.
      More recently, the Tyler Court of Appeals granted mandamus
relief when a trial court ordered production of a truck driver’s cell phone
for inspection and examination. In re UV Logistics, LLC, No. 12-20-
00196-CV,
2021 WL 306205
, at *1 (Tex. App.—Tyler Jan. 29, 2021, orig.
proceeding). The plaintiff alleged that the defendant was distracted by
his cell phone and presented a witness affidavit attesting the truck
driver said he was looking at his phone at the time of the accident. Id.
at *1, *4. The plaintiff argued she was entitled to inspect the cell phone
to prove both whether the truck driver was using it at the time of the
accident and whether he regularly used it while driving. Id. at *4. While
the court of appeals acknowledged that the plaintiff demonstrated a
“reasonable need” for this information, id., it granted mandamus relief
and vacated the order, concluding the trial court abused its discretion
by ordering production without limitation. Id. at *5.
      Applying these same principles here, we conclude that the trial
court abused its discretion by ordering production of Kuraray’s
employees’ cell-phone data for a six-week or four-month period without




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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. Plaintiffs’
petitions do not allege that cell-phone use by anyone was a contributing
cause of the release. Instead, they assert in their motions to compel the
general proposition that the release may have been caused by “cell
phone usage and abuse by board operators.” Relying on this assertion,
the trial court ordered Kuraray to produce four months of cell-phone
data for the three board operators and six weeks for the supervisors.
This was impermissibly overbroad.
      The question that discovery of cell-phone data is meant to answer
in this case is whether any Kuraray employee was distracted by his cell
phone at a time when he should have been taking action to prevent the
release, such that his use of the cell phone reasonably could be found to
be a contributing cause of the release. Plaintiffs do not dispute that the
events to which they allege the employees should have been responding
began, at the earliest, during the May 18 night shift, which started at
5:30 p.m. And Kuraray does not dispute that Plaintiffs are entitled to
discover the board operators’ cell-phone data during on-duty hours from
the start of that shift until the release occurred—approximately
seventeen hours later. But the trial court instead ordered Kuraray to
produce cell-phone data for far broader time periods: either four months
preceding the release (in the case of the three board operators) or six
weeks preceding the release (in the case of the two supervisors).
      Plaintiffs argue that cell-phone data from days, weeks, and
months before the release is relevant because Kuraray negligently failed
to supervise its employees and failed to implement adequate policies and




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procedures to protect against cell-phone misuse. But Kuraray’s policies
regarding cell-phone use and its alleged failure to supervise its
employees are relevant only if there is some evidence that cell-phone use
could have been a contributing cause of the release itself. In the absence
of such a showing, the employees’ earlier cell-phone usage, like
Kuraray’s cell-phone policies and success or failure in enforcing them, is
neither relevant nor discoverable.
      The record shows the extent of each of the five employees’
cell-phone use during the seventeen hours in which cell-phone
distraction at work could potentially have made a difference in how
events unfolded on May 19. The trial court should not have ordered
production of cell-phone data outside this time period for any of the
employees without first undertaking a person-by-person analysis of
whether cell-phone use within that time period could have been a
contributing cause of the release.
      In fact, the mandamus record shows that three of the five
employees 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:
         Joe Jones: no evidence of any cell-phone activity after he began
          monitoring the R-1201 at 10:00 a.m.4
         Joe Zoller: no evidence of any cell-phone activity for the thirty
          minutes before the release, during which he testified he was




      4 The mandamus record shows Jones received seven texts before 10:00
a.m. and made a three-word response to one of them. But all of this occurred
before he was tasked with monitoring the R-1201.




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          in the control room and watching what the board operators
          were doing.
         Mike Bowlin: no evidence he was in the control room before
          the release and no evidence showing how his two seconds of
          cell-phone activity approximately 90 minutes before the
          release from a location outside the control room could have
          contributed to the release.
Plaintiffs do not dispute this evidence. Instead, they argue that it,
combined with Kuraray’s alleged problems with cell-phone abuse, is
sufficient to raise a fact issue as to whether these employees were
distracted by their phones, making their earlier cell-phone data
relevant. We disagree. There was no showing of any cell-phone activity
by these three employees that reasonably could be found to be a
contributing cause of the release. Accordingly, the trial court abused its
discretion in ordering the production of their earlier cell-phone data.
      That leaves Neal and Moorer, the two board operators whose
records do reflect some cell-phone activity while they were in the control
room monitoring the R-1201 in the hours preceding the release:
         Jeremy Neal, the board operator on duty from 5:30 p.m. on
          May 18 until 5:30 a.m. on May 19: records show ten seconds of
          cell-phone activity at about 1:19 a.m., when the R-1201’s
          temperature was dropping.
         Troy Moorer, the board operator monitoring the R-1201
          beginning at 5:30 a.m. on May 19: received two texts and
          responded to one approximately one hour before the release.
While these two employees’ records reflect some cell-phone use during
the timeframe in which the R-1201’s temperature was dropping (in
Neal’s case) and after alarms were activated (in Moorer’s), as the party
seeking discovery, Plaintiffs bore the burden to show, and the trial court
had an obligation to consider, whether the use—its nature, duration,




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and frequency in the given context—could support a finding that
cell-phone use contributed to the release. See In re TIG,
172 S.W.3d at 168
 (“The burden to propound discovery complying with the rules of
discovery should be on the party propounding the discovery, and not on
the courts to redraft overly broad discovery . . . .”); cf. Lozano v. Lozano,
52 S.W.3d 141, 148
 (Tex. 2001) (“[I]n cases with only slight
circumstantial evidence, something else must be found in the record to
corroborate the probability of the fact’s existence or non-existence.”). In
the absence of such a showing, it was an abuse of discretion to order
production of the employees’ earlier cell-phone data.5
       Finally, we conclude Kuraray lacks an adequate remedy by
appeal because its compliance with the discovery orders would require
the production of information that has not been shown to be relevant.
See In re Nat’l Lloyds Ins. Co.,
532 S.W.3d 794, 803
 (Tex. 2017)
(“Mandamus relief is appropriate when . . . a trial court compels
production of irrelevant information . . . .”); In re CSX,
124 S.W.3d at 153
 (concluding there is no adequate remedy by appeal from a discovery
order requiring production of patently irrelevant documents).
       Without hearing oral argument, see TEX. R. APP. P. 52.8(c), we
conditionally grant Kuraray’s petition for writ of mandamus and direct

       5We do not foreclose the possibility that Plaintiffs ultimately may show
themselves entitled to discovery of Neal’s or Moorer’s cell-phone data outside
the seventeen hours preceding the release. If Neal’s or Moorer’s brief
cell-phone use during this period, considered in context of the surrounding
circumstances, is shown to be a potential contributing cause of the release,
then evidence of cell-phone use outside this time period may become relevant.
But no such showing was made here; accordingly, it is sufficient for today to
conclude that the trial court abused its discretion by adopting a four-month
temporal scope in the first instance.




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the trial court to vacate its orders requiring Kuraray to produce
cell-phone data for Neal, Moorer, Jones, Zoller, and Bowlin. We are
confident the trial court will comply, and the writ will issue only if it
does not.

OPINION DELIVERED: December 9, 2022




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