in Re Kuraray America, Inc.

Supreme Court of Texas

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No. 20-0268

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In re Kuraray America, Inc.,

Relator

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On Petition for Writ of Mandamus

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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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