Goff, J.
To assist in trial preparation, our rules of discovery are designed to enhance the availability of information to both parties. At the same time, our discovery rules contain certain limiting principles aimed at curbing information overreach and the potential for abuse. These limiting principles—including restrictions based on relevance, burden, expense, embarrassment, privilege, and proportionality—implicate the value of protecting a party’s privacy interests. The discovery request here, access to a party’s smartphone device, presents a unique challenge to balancing these privacy interests against the disclosure of information.
In resolving this issue of first impression, we hold that the party seeking production of a smartphone must provide some evidence of the device’s use at a time when it could have been a contributing cause of the incident litigated and must describe the data sought with reasonable particularity. In so holding, we stress three things: (1) that, unlike certain privileged information exempt from disclosure, privacy concerns are not a per se bar to discovery of relevant information; (2) that the “some evidence” standard poses a relatively low burden on the requesting party, leading to disclosure in most cases when that party makes the required showing through sources obtained by less-invasive means; and (3) that, given the highly deferential standard of review, we will affirm a trial court’s discovery ruling so long as it’s sustainable on any legal basis in the record.
Based on the record here, we hold that, because the plaintiff’s discovery request lacks the necessary evidentiary support and because it casts too wide a net, the trial court did not abuse its discretion by denying plaintiff’s motion to compel. Accordingly, we affirm.
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… First, we trace the recent evolution of Trial Rule 26(B)(1), leading us to conclude that the potential for invasion of privacy is a “burden” courts should consider when determining the scope of discovery. In recognizing the unique privacy interests implicated by the modern-day smartphone, we then articulate a standard for analyzing discovery requests for the sensitive content contained in these devices. Finally, we apply this standard to the Plaintiff here and conclude that, because his discovery request lacks the necessary evidentiary support and because of its impermissible overbreadth, the trial court did not abuse its discretion by denying the motion to compel.
I. Our discovery rules balance the tension between access to information and information overreach.
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These provisions, taken together, stand for the “general proposition” that “discovery should go forward, but, if challenged, a balance must be struck between the need for the information and the burden of supplying it.” In re WTHR-TV, 693 N.E.2d at 6. The means for achieving this balance is an issue we turn to first in resolving the dispute here.
A. Rule 26(B)’s proportionality framework requires analysis of an opposing party’s legitimate privacy concerns.
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In 2007, this Court amended Trial Rule 26 by adding the second paragraph to subdivision (B)(1). See Order Amending Rules of Trial Procedure, 94S00-0702-MS-49 (Ind. Sept. 10, 2007). Under the revised rule, a trial court may limit the scope of discovery if (among other things) “the burden or expense of the proposed discovery outweighs its likely benefit,” considering “the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Id. Rather than characterizing relevant information as discoverable by default (with a narrow exception for “privileged” matters), Trial Rule 26(B)(1) now limits the scope of discovery to matters that are both relevant and proportional.
Though proportionality in discovery may often implicate financial considerations, an emerging consensus among courts and commentators considers the invasion of privacy interests a “burden” to weigh against the “likely benefit” of discovery…
We find several reasons to join in this consensus.
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Beyond the text of Rule 26(B)(1), modern advances in technology—and the accompanying concerns over the security of personal information— further compel us to recognize privacy interests as an integral part of the proportionality analysis…
Given the sheer breadth of information contained in the modern smartphone, we recognize the potential for information overreach when parties seek access to these devices. The standard for balancing this concern for privacy against an otherwise “liberal discovery” process is an issue we turn to next.
B. Civil discovery requests for smartphone access call for careful analysis of several factors.
The litigants here have asked us to articulate a measured way in which a party may access an opposing party’s smartphone in the context of a civil-discovery request. To resolve this issue of first impression, and to assist us in developing guidance for trial courts, we turn to decisions from other jurisdictions…
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From these cases, along with elements from our own jurisprudence and other sources of authority, we offer the following analytical framework to guide our trial courts in managing discovery requests for the production and inspection of smartphone data.
First, the party seeking production of smartphone data must provide “some evidence” of the smartphone’s use by the person from whom the data is sought. See Kuraray, 656 S.W.3d at 142. Such evidence—whether in the form of deposition testimony, phone records, or other sources obtained by less-invasive means—must show the smartphone’s use “at a time when it could have been a contributing cause of the incident on which the claim is based.” See id. This standard presents a relatively low burden for the requesting party to overcome. We stress, however, that “[m]ere suspicion or speculation” of smartphone use is insufficient to justify intruding into the privacy interests of an opposing party. See Estate of Logan, 2021 WL 389412, at *4 (internal citation and quotation marks omitted).
Second, as with any discovery request, the party seeking production of smartphone data must “describe each item and category with reasonable particularity.” See T.R. 34(B). This specificity 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 incident). See Kuraray, 656 S.W.3d at 142. Of course, the “party need not specify the information sought where the contents of the item are unknown or unknowable.” In re WTHR-TV, 693 N.E.2d at 8. But the party must offer something more precise than a demand for an unrestricted inspection of the smartphone or a request for “all” emails, text messages, photos, or other digital files. See id.; Crabtree, 2017 WL 413242, at *5; Sedona Principles, supra, at 87. To help narrow the request, the party can use less-invasive discovery tools like depositions, interrogatories, and requests for production of phone records.
If the requesting party meets these initial burdens (“some evidence” of smartphone use and “reasonable particularity” in description), then the trial court may order production of the smartphone data unless the opposing party objects to the discovery request. When a party objects, “a balance must be struck between the need for the information and the burden of supplying it.” [Footnote omitted.] In re WTHR-TV, 693 N.E.2d at 6. When crafting the appropriate relief, whether in defining the scope of discovery as a threshold matter or in response to a request for protective order, a court should consider all proportionality factors to determine whether the “burden or expense of the proposed discovery outweighs its likely benefit.” See T.R. 26(B)(1) (citing T.R. 26(C)). 5 Though privacy concerns are “germane to the question of whether requested discovery is burdensome or oppressive,” we stress that such concerns are not a per se bar to discovery of relevant information and should not be confused with legal privileges or other discovery exclusions. See E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010).
In the absence of an objection, discovery may proceed, provided the temporal scope of the data sought encompasses only that period in which smartphone use “could have contributed to the incident.” See Kuraray, 656 S.W.3d at 142. If this initial production indicates that smartphone use could have contributed to the incident, then the court may consider whether further discovery beyond that timeframe may be relevant. Id.
With this analytical framework in mind, we now turn to Plaintiff’s discovery request here.
II. The trial court did not abuse its discretion by denying Plaintiff’s motion to compel.
To reiterate, the Plaintiff here sought and received records from Defendant’s cellphone provider as well as data from the “black box” of Defendant’s car. Tr. Vol. 2, p. 7; App. Vol. 2, p. 30. When this information revealed nothing of consequence for his case, the Plaintiff sought access to Defendant’s iPhone “for purposes of extracting, without modifying, data reflecting the utilization of the subject phone” on the date of the accident. App. Vol. 2, p. 39. In support of this request, the Plaintiff cited his reconstruction expert’s report that Defendant was “inattentive and/or distracted” at the time of the collision, the Defendant’s deposition testimony that she had used a navigation app earlier in the day, and Defendant’s deposition testimony that she had “looked up” just before the accident. Id. at 30–32.
For the reasons below, we find no abuse of discretion by the trial court in denying Plaintiff’s motion to compel.
A. Plaintiff’s discovery request lacks the necessary evidentiary support.
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B. Plaintiff’s discovery request casts too wide a net.
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Conclusion
For the reasons above, we hold that, because the Plaintiff failed to meet his burden of showing how any benefit of producing Defendant’s iPhone for inspection outweighed Defendant’s privacy interest, the trial court did not abuse its discretion by denying Plaintiff’s motion to compel. [Footnote omitted.]
Affirmed.
Rush, C.J., and Massa and Slaughter, JJ., concur.
Molter, J., dissents with separate opinion.
Molter, J., dissenting.
I agree with the Court that our discovery rules balance “the tension between open access to information, on the one hand, and information overreach, on the other.” Ante, at 7. At bottom, we are trying to strike the right balance “between the need for the information and the burden of supplying it.” Id. at 7–8 (quoting In re WTHR-TV, 693 N.E.2d 1, 6 (Ind. 1998)); see also Nat’l Collegiate Athletic Ass’n v. Finnerty, 191 N.E.3d 211, 219 (Ind. 2022) (explaining that our trial rules balance “the competing goals of limiting potential discovery abuse and ensuring litigants’ access to necessary information”). That requires our trial courts to right-size discovery so that it is proportional to the needs of the case. Id. at 7. But I respectfully disagree with the Court’s holding that Jennings “failed to meet his burden of showing how any benefit of producing Defendant’s iPhone for inspection outweighed Defendant’s privacy interest.” Id. at 20.
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In sum, cell phone data revealing whether Smiley was using her phone when the accident occurred was critical to a central issue in the case— whether Smiley was a distracted driver—and the benefit of that information to resolving the case far outweighed Smiley’s privacy concerns, which could have easily been addressed through a protective order. Accordingly, the trial court exceeded its discretion by denying Jennings’ motion to compel, and because that error was not harmless, we should vacate the judgment. Since the Court concludes otherwise, I respectfully dissent.