The Indiana Supreme Court heard oral arguments in June 2024 on a case that will have implications for the production and inspection of cell phones during discovery in civil cases. Jennings v. Smiley, 24S-CT-186, is a run-of-the-mill motor vehicle accident case in which Jennings (Plaintiff-Appellant) sought to procure and inspect a forensic copy of Smiley’s (Defendant-Appellee) cell phone to prove they were engaged in distracted driving, and therefore negligent. The trial court denied the request after previously granting it, largely due to privacy concerns and the search’s intrusive nature relative to the case’s needs. The jury returned with a defense verdict, assigning Jennings 90% fault. After the Court of Appeals affirmed the trial court, the Indiana Supreme Court granted transfer and requested oral arguments.
At oral arguments, the Indiana Supreme Court appeared poised to adopt a new rule by which the inspection of physical cell phones and their forensic copies may be accomplished during discovery; signaling that the existing rules of discovery are likely inadequate to weigh the privacy concerns against the needs of the case and/or the nature of any request.
While the Court was skeptical of the framework proposed by Jennings to address this issue, it appeared to have been contemplated by Texas courts in recent decisions on similar issues. The Court’s main concern with such requests was that either party could use the existing discovery rules as moving targets to either justify increasingly intrusive searches or to foreclose reasonable requests for production because prior searches turned up unfavorable evidence.
Ultimately, the Court appeared to view the Appellant’s request to search the Appellee’s phone as reasonable due to its limited nature. It was, however, unsatisfied with either party’s responses as to which privacy interests are implicated by discovery requests for the inspection of cell phones and what considerations must be given to those interests to prevent overly intrusive inspections. As such, any new rule will likely be limited to requests for physical inspections of phones–rather than talk, text, and even data records–and address when legitimate privacy interests arise and how they might be protected while respecting the discretionary role of trial courts in the discovery process.
Developments on this case will be updated in upcoming General Liability Newsletters.