Texas Court of Appeals Approves Writ of Mandamus to Stop Facebook/Google Fishing Expedition

Last month, a three judge panel of the Twelfth Court of Appeals of Texas issued a decision, In re UV Logistics, LLC, No. 12-20-00196-CV, 2021 Tex. App. LEXIS 723 (Tex. App. Jan. 29, 2021), on a petition for a writ of mandamus vacating lower court orders directing the Defendants to produce data from his Facebook account; his Google account; and a smartphone itself for forensic examination. The Plaintiff in this personal injury suit alleged that a Defendant was distracted by his cell phone while he was driving, and later made false entries in a log tracking how long he had been driving. The Plaintiff was able to obtain Facebook posts that showed this Defendant was in a different location than his logbook indicated. She sought to create a "digital bread crumb trail" showing his location in the days before the accident. Id. at *9. The court order for the Facebook account covered a period from January 1, 2004 to the present. The accident took place in 2017.

The three judge panel rejected the Plaintiff's contention that the doctrine of unclean hands barred the Defendants from petitioning the Court to issue a mandamus order to correct overboard discovery orders. The Plaintiff argued that because a Defendant had deleted records after a preservation letter was received, and did not respond to other discovery requests, the doctrine of unclean hands should be invoked. The doctrine holds that a party should not be entitled to an equitable remedy that results from his own bad faith.

While the Court acknowledged that the Plaintiff had a need to track a Defendant's location in the days leading up to the accident, and to determine if he was using his smartphone when the accident took place, it found the Plaintiff's request overbroad as a matter of law. "Because the discovery requests could have been more narrowly tailored and all four requests were overly broad, we hold that Respondent abused his discretion by signing the July 30 and August 4 orders without limitation." Id. at *11-12. A court order allowing a fishing expedition was found to be an abuse of discretion. " [T]he orders require Franco and UVL to produce all Facebook, Google Account, and cell phone information including posts, likes, pictures, groups, ads, 'pokes', location history, login information, passwords, emails, etc., no matter how mundane or remote, regardless of the topic, content, or subject. Undoubtedly, much of the information that Gentry requested will be completely unrelated to the subject matter of her claims against Relators." Id. at *11.

The Court of Appeals conditionally issued the writ of mandamus, and gave the Judicial District Court of Upshur County, Texas 10 days to vacate its orders. The Plaintiff was ordered to pay all costs for the appeal.