Indiana Supreme Court Fashions New Standard for Discovery of Smartphone Data

The Indiana Supreme Court recently resolved an issue of first impression in Indiana regarding the ability of parties to access smartphone data in discovery. In Jennings v. Smiley, Jessica Smiley (Smiley) was driving north on Westfield Boulevard in Carmel, Indiana during rush hour and struck a pedestrian, Charles Jennings (Jennings), while he was crossing the road. Smiley claimed Jennings stepped out from behind a large box truck driving in the oppositive direction, which obscured her view and prevented her from stopping in time to avoid hitting him. Witnesses corroborated Smiley’s claims. Investigating officers determined Jennings was not crossing at an intersection, there were no crosswalk signs, yield signs, stop signs, or pedestrian-crossing signs, and there was no evidence of speeding, reckless driving, or distracted driving.

Jennings filed a personal injury lawsuit against Smiley. In discovery, Jennings obtained Smiley’s phone records, which did not show Smiley was talking or texting on her phone. His accident-reconstruction expert downloaded data from Smiley’s vehicle, which also did not show anything of consequence. Jennings then sought access to Smiley’s iPhone to extract data that might show use of the smartphone. Jennings referenced his accident-reconstruction expert’s opinion that Smiley had been “inattentive and/or distracted” and Smiley’s deposition testimony that she had been using a navigation app earlier in the day and had “looked up” just before the accident. Smiley objected to producing her phone and Jennings filed a motion to compel, which the trial court ultimately denied, based upon Smiley’s privacy concerns. A jury trial was held, with the jury finding Jennings 90% at fault and Smiley 10% at fault, which barred Jennings from any recovery under Indiana’s comparative fault scheme since he was more than 50% at fault for the accident.  

On appeal the Indiana Supreme Court first reviewed the competing interests of open access to information and a party’s privacy interests under Indiana’s trial rules. While allowing for liberal discovery, Indiana’s trial rules do provide limitations, including limitations based upon relevance, burden, expense, embarrassment, privilege, and proportionality. Noting that Indiana’s trial rules limit the scope of discovery to matters that are both relevant and proportional, the Court concluded that invasion of privacy is a “burden” to be considered and weighed against the “likely benefit” of discovery. However, unlike privileged information protected from disclosure, privacy concerns are not a per se bar to the discovery of relevant information.

The Court then fashioned a new standard for discovery of smartphone data. First, the party seeking discovery of smartphone data must provide “some evidence” of the smartphone’s use by the person from whom the data is sought at a time when the use could have been a contributing cause. In the Court’s view, this requirement presents “a relatively low burden for the requesting party to overcome.” Second, the party seeking the smartphone data must “describe each item and category with reasonable particularity,” which applies to the subject matter of the information sought (e.g., navigation apps) and the temporal scope of the request (e.g., on the day of the accident). If a party provides “some evidence” of the smartphone’s use when it could have been a contributing cause and sets forth the data sought with “reasonable particularity,” then the trial court can order production of the smartphone data, unless the person from whom it is sought objects, in which case the trial court shall consider all proportionality factors to determine whether the burden or expense of producing the data outweighs its likely benefit under Indiana’s trial rules.

With this new standard, the Court reviewed Jennings’ request in this case. Ultimately, the Court found Jennings’ request lacked the necessary evidentiary support and was too broad. As to the necessary evidentiary support, the Court noted that although Jennings’ accident-reconstruction expert believed Smiley was “inattentive and/or distracted,” the expert admitted that Smiley “could not have seen [Jennings] before the truck passed by him as [Jennings was] waiting on the corner,” and while the expert claimed Smiley must have been distracted, the expert had no explanation for why Jennings similarly did not see Smiley’s vehicle after stepping out from behind the truck. The Court noted the witnesses corroborating Smiley’s claims and the investigating officers having found no evidence of speeding, reckless driving, or distracted driving. The Court discounted Smiley’s statement that she “looked up” prior to the accident, as one of the officers testified people commonly say that as a type of expression. Lastly, the Court noted Smiley testified she had closed the navigation app she had been using, Jennings did not show how he or his expert could show active use of any apps, and with regards to the navigation app, even if it were being used, Jennings could not show how it caused Smiley to be distracted. With regards to the scope of the request, the Court found it overbroad, with no limit on what data was encompassed in the request, and in part unreasonably cumulative or duplicative considering the other evidence in the case. According to the Court, Jennings failed to meet his burden of showing how any benefit of producing Smiley’s smartphone for inspection outweighed Smiley’s privacy interest, and therefore, the trial court did not abuse its discretion in denying his motion to compel.

Justice Molter dissented voicing his disagreement with the Court’s conclusion. He noted, “there is little evidence more relevant than whether a driver was distracted by their cell phone, which is the evidence Jennings sought here.” While the Court found Jennings did not have compelling enough evidence of Smiley using her phone at the time of the accident, Justice Molter noted that that is the whole reason behind discovery—parties do not have to “provide the information they seek before they are permitted to seek it.” He also noted Jennings’ request was not overbroad, as any kind of data showing any kind of phone use would be relevant. Lastly, he noted the request was not duplicative or cumulative, but supplemental, as the phone records showing calls and texts did not show any phone use. Justice Molter believed the benefit of information showing whether Smiley was using her phone outweighed her privacy interests, which could easily have been addressed with a protective order. 

You can read the full opinion and dissent here.