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Indiana Supreme Court “rings” in new standard for cell phone discovery

2/5/25

By: Donald Patrick Eckler and Sophie Stevanovich

The Indiana Supreme Court in Jennings v. Smiley, 2025 WL 289151 (Ind. 2025), set forth the standard that a party must meet in order to require the production of cell phone data. In doing so, the Court considered the balance of privacy interests and the desire to increase the availability of evidence. 

After Plaintiff filed suit against Defendant for an auto accident, Plaintiff sought access to Defendant’s cell phone records for the purpose of determining whether Defendant was distracted on her phone at the time of the accident. In response to Plaintiff’s motion to compel, Defendant asserted Plaintiff’s access to Defendant’s cell phone would have “significant privacy concerns,” especially given the evidence indicating that Defendant was not on her phone at the time of the accident. The Court of Appeals held that without “sufficient indicators” that Defendant was using her cell phone at the time of the accident, the burden of inspecting Defendant’s cell phone outweighs the benefit, given the Defendant’s privacy concerns.  

The Indiana Supreme Court first considered the evolution of Indiana’s Trial Rule 26(b)(1), prompting the Court to hold that “the potential for invasion of privacy is a ‘burden’ courts should consider when determining the scope of discovery.” Changes in the past twenty years to Rule 26(b)(1) have allowed courts to limit the scope of discovery depending on certain factors. Importantly, the Rule requires discoverable information to be both relevant and proportional. Although the Court acknowledged that considering proportionality in discovery can involve financial concerns, the Court ultimately joined the “emerging consensus among courts and commentators” in holding that an invasion of privacy constitutes a “burden” that weighs in favor of limiting discovery. The Court listed multiple reasons for reaching this conclusion, including that technological innovation implicates privacy concerns that are pertinent to a proportionality evaluation. 

The Court then analyzed the approaches of other jurisdictions in order to detail its own standard by which a party can successfully request an opposing party’s cell phone during discovery. First, the requesting party must assert “some evidence” that the opposing party was using the cell phone during the time the incident allegedly occurred. The Court emphasized that mere speculation of the phone’s use is not enough to outweigh the opposing party’s privacy interests. Second, the requesting party must describe, with reasonable particularity, each item and category of cell phone data that it is seeking. If both of these standards are met, absent objection from the opposing party, then a court is permitted to order production. If the opposing party objects, then the court is to conduct a proportionality analysis, which should consider, among other things, any privacy concerns.  

The Court determined that the Plaintiff’s discovery request at issue here did not meet this standard. First, the request did not meet the “some evidence” standard, given the strong evidence that Defendant was not using her phone at the time of the accident—specifically, there was a lack of reliable evidence that Defendant was “distracted” at the time of the accident. Even if the request did meet the “some evidence” standard, the Court found that the request was overly broad, duplicative, and sought information beyond what was needed to determine if the Defendant was distracted at the time of the incident.   

Discovery of electronic data of all kinds is increasingly common in tort litigation. The Indiana Supreme Court has set forth a standard deferential to privacy interests balancing the concerns over the production of such data by requiring the proponent of the discovery to come forward with “some evidence” to support the request and particularity in the information sought. 

For more information, please contact Donald Patrick Eckler at patrick.eckler@fmglaw.com, Sophie Stevanovich at sophie.stevanovich@fmglaw.com, or your local FMG attorney.