During the past year we have reported a number of per curiam opinions handed down by the Texas Supreme Court that erect some guardrails around discovery orders. Earlier this month the Court issued two more of these primers, one involving an overbroad discovery request for cell phone records and the other a trial court order denying a defense request to compel a medical examination.
In re Kuraray America, Inc. (No. 20-0268; December 9, 2022) arose from a May 2018 explosion at Kuraray’s chemical facility in Pasadena that injured 21, many seriously. Plaintiffs sought discovery of cell-phone data from five Kuraray employees, two supervisors and three control-board operators who were on duty during the incident. The trial court ordered Kuraray to produce the data for the period beginning four months before the incident, based on an anonymous email complaining about board operators violating company policy by using cell phones while on duty. Plaintiffs argued that the data was relevant to establish whether the board operators were distracted by their cell phones on the day of the incident. At the same time, however, plaintiffs did not allege that cell phone use was a contributing cause of the accident. Kuraray objected and asked the trial court for reconsideration, arguing that cell phone data showed that none of the five employees were using a cell phone at the time, rendering the trial court’s order overbroad. The trial court, however, declined to reconsider its order. After failing at the court of appeals, Kuraray subsequently filed a petition for writ of mandamus, which SCOTX granted.
SCOTX’s analysis commenced with the observation that “discovery requests for cell-phone data have become commonplace in recent year. 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.” Reviewing these cases, the Court derived a threshold standard that “the party seeking [the data] 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 plaintiff produces such evidence, the trial court may then “consider whether additional discovery regarding cell-phone use beyond that timeframe may be relevant.” Here the Court held that the trial court abused its discretion when it ordered the production of cell-phone data for the extended period prior to the incident. Plaintiffs produced no evidence that the employees in question were distracted by cell phones. In response to plaintiffs’ claim that the requested cell phone data would be relevant to a negligent supervision claim, the Court held that in the absence of some evidence that cell phone use could have been a contributing cause of the incident, the data were “neither relevant nor discoverable.” And although the cell phone data showed that one supervisor made a brief call and another sent a text during the relevant time period, plaintiffs failed to show that the use of the phones—“its nature, duration, and frequency in the given context—could support a finding that cell-phone use contributed to the release.” Consequently, the Court conditionally granted the writ.
The second case, In re Auburn Creek Limited Partnership; The Lynd Company; Lynd Family Limited Partnership; and Forty Four Eleven, LLC (No. 21-0886; December 2, 2022) arose from a negligence action in which six members of a family who leased an apartment from Auburn Creek alleged injuries from carbon monoxide poisoning. Plaintiffs seek $33 million in economic damages and additional past and future non-economic damages in the suit. Defendants filed a Rule 204.1, TRCP, motion to compel a neuropsychological examination for each of the family members to be conducted by their medical expert. After a review of plaintiffs’ medical records, the expert concluded that he could not ethically render a medical opinion without an examination of each plaintiff involving an assessment and testing, the extent of which could not be determined until the expert could meet with the patients. The trial court denied the motion. Auburn sought reconsideration accompanied by the expert’s affidavit reducing the number of tests. Auburn also sought a continuance. The trial court granted the motion and set a discovery deadline. It then heard and denied the reconsideration motion five days before the discovery deadline, on the basis that conducting the examinations would necessarily extend beyond the deadline. The TC also determined that the scope of the requested testing was too broad.
Auburn filed a petition for writ of mandamus, which was denied by the San Antonio Court of Appeals. SCOTX granted Auburn’s petition and held that the trial court clearly abused its discretion when it determined that Auburn had failed to show good cause for the medical examinations. The Court first responded to plaintiffs’ claim that Auburn’s motion was untimely and that Auburn was not diligent in seeking the exam. Rule 204.1 requires a defendant to move to compel a medical examination at least 30 days before the discovery deadline. In this case, Auburn filed its initial motion more than 90 days before the discovery deadline and refiled its motion more than 45 days before the deadline, easily complying with the rule. Though the hearing on the motion to reconsider was held only a few days before the deadline, the delay “was due to factors outside of Auburn Creek’s control,” among them scheduling conflicts with plaintiffs’ counsel, the trial court’s availability, and defense counsel’s COVID case. The trial court thus clearly abused its discretion to the extent it based its ruling on lack of timeliness.
On the merits of the motion, SCOTX found that the trial court abused its discretion because Auburn showed good cause of the examination “when the mental or physical condition . . . of a party . . . is in controversy.” TRCP 204.1(c)(1). Since the plaintiffs placed their condition in controversy, Auburn had to show that: “(1) the examination is relevant to the issue in controversy and is likely to lead to relevant evidence, (2) there is a reasonable nexus between the examination and the condition in controversy, and (3) the desired information cannot be obtained by less intrusive means.” The Court found that Auburn satisfied all three elements. Noting that plaintiffs’ expert had already performed more than two dozen tests on one of the minor plaintiffs, the Court both found the requested testing relevant to developing facts that might contradict plaintiffs’ expert’s findings and that additional testing not performed by plaintiffs’ expert would lead to the discovery of relevant evidence. The evidence also showed “a reasonable nexus between the proposed examinations and the conditions at issue,” since the tests directly responded to the conditions and injuries claimed by the plaintiffs. Finally, the Court found that no less intrusive means of obtaining the evidence existed absent the requested testing. Moreover, plaintiffs’ expert did examine the plaintiffs and would testify as such at trial. If the defense expert would not do likewise, but only review medical records, his lack of first-hand knowledge would likely lead to some of his testimony being excluded at trial. As the Court concluded, “absent an exam, Auburn Creek would lose the battle of the experts.”
We applaud the Court for its practice of stepping in to address discovery abuses. At the same time, it’s a little unfortunate that the Court has to do so as frequently as it does.
