In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00692-CV ___________________________
IN RE PHYLLIS MICHELLE WRIGHT AND ZANE WRIGHT, AS THE EXECUTOR OF THE ESTATE OF KIMBERLY WRIGHT, Relators
Original Proceeding 89th District Court of Wichita County, Texas Trial Court No. DC89-CV2024-0924
Before Kerr, Bassel, and Wallach, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
I. Introduction
In July 2022, Kimberly Wright was hit by a forklift at her job site and later died
from her injuries. Relators Phyllis Michelle Wright and Zane Wright, as the executor
of Kimberly’s estate, sued various real parties in interest (RPIs), many of whom have
been trying since then to obtain Kimberly’s cell-phone information to ascertain
whether she was using a cell phone at the time of the accident. Relators have objected
to the overbreadth of these discovery requests and have repeatedly contended that the
RPIs have failed to meet their burden under the requirements of In re Kuraray America,
Inc., 656 S.W.3d 137 (Tex. 2022) (orig. proceeding), discussed below.
After the trial court denied relators’ motion to quash subpoenas duces tecum
sent by some of the RPIs to AT&T and T-Mobile and ordered that their access to
Kimberly’s cell-phone data would be limited “to the 24 hours preceding the incident
that makes the basis of this suit,” relators filed this petition for writ of mandamus. In
two issues, relators assert that the trial court abused its discretion by denying their
motion to quash, by allowing the collection of Kimberly’s cell-phone data, and by
ordering her cell-phone data to be discoverable for twenty-four hours before the
accident. They also complain that the trial court’s order “is silent on any procedure
restricting the collection of Kimberly’s . . . private photos, text message content,
financial information and/or any other data unrelated to the use of the phone at the
time of the incident.” And they point out that a discovery order compelling
2 “production beyond the rules of [civil] procedure is an abuse of discretion for which
mandamus is the proper remedy.” See id. at 142 (quoting In re Nat’l Lloyds Ins., 449
S.W.3d 486, 488 (Tex. 2014) (orig. proceeding)).
Because relators’ mandamus record1 reveals an abuse of discretion for which
no adequate appellate remedy exists, see id., we conditionally grant partial relief, vacate
the order’s overbroad temporal limit, and remand with instructions for the trial court
to more narrowly tailor its order for access to Kimberly’s cell-phone data.
II. Discovery of Cell-Phone Data
Trial courts have broad discretion to decide whether to permit or deny
discovery. In re K & L Auto Crushers, LLC, 627 S.W.3d 239, 247 (Tex. 2021) (orig.
proceeding). In determining whether the trial court has abused its discretion, we may
not substitute our judgment for the trial court’s determination of factual or other
discretionary matters. In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (orig.
proceeding). But because a trial court has no discretion in determining what the law is
or applying it, we review its decisions on questions of law and application-of-law-to-
fact questions much less deferentially. Id. Ordering discovery that exceeds what our
procedural rules permit is an abuse of discretion. In re Off. of Att’y Gen., 702 S.W.3d
360, 364 (Tex. 2024) (orig. proceeding); see K & L Auto Crushers, LLC, 627 S.W.3d at
1 The day after relators filed their petition, we requested a response from RPIs. See Tex. R. App. P. 52.8(b) (providing that if the court is of the tentative opinion that relator is entitled to the relief sought, the court must request a response if one has not been filed). RPIs’ response was filed late and provides no justification under the Kuraray standard for the twenty-four-hour time frame permitted by the trial court.
3 252 (stating that discovery requests and orders are overbroad if they are not properly
tailored with regard to time, place, or subject matter).
The supreme court has identified key principles to guide the management of
cell-phone-data discovery. See Kuraray Am., Inc., 656 S.W.3d at 142. Specifically, to be
entitled to production of cell-phone data: (1) The party seeking it must allege or
provide some evidence of cell-phone use by the person whose data is sought at a time
when it could have been a contributing cause of the incident on which the claim is
based; (2) If the party seeking discovery meets this initial burden, the trial court may
order production of cell-phone data if its temporal scope is tailored to encompass only
the period in which the cell-phone use could have contributed to the incident; and
(3) If the initial production indicates that cell-phone use could have contributed to the
incident, then a trial court may consider whether additional discovery regarding cell-
phone use beyond that time frame may be relevant. Id.
Long before the supreme court specifically addressed the production of cell-
phone data in Kuraray, it addressed the need to guard against undue intrusion in the
production of electronic information. See In re Weekley Homes, L.P., 295 S.W.3d 309,
322 (Tex. 2009) (orig. proceeding). In Weekley Homes, the supreme court emphasized
that “sensitive information should be protected[,] and the least intrusive means should
be employed.” Id. at 322–23 (granting relief when “the harm that might result from
revealing private conversations, trade secrets, and privileged or otherwise confidential
communications[] cannot be remedied on appeal”).
4 A. Background
1. Mandamus record documents
The mandamus record before us contains conflicting information about
whether Kimberly was using her cell phone at the time of the accident. A January 20,
2023 OSHA citation stated, “There is a video of the incident, but the footage
captured does not clearly show the employee using her cell phone.” [Emphasis added.]
The citation also stated, “During the investigation, NO cell phone was present or
found.” In September 2025, RPIs listed Chance Pringle, the forklift driver, and
Patrick Herrian, a supervisor, in their disclosures as persons expected to testify about
Kimberly’s use of a cell phone or headphones at the time of her death.2
In October 2025, RPIs sent two notices of subpoena duces tecum—one to
AT&T and the other to T-Mobile—seeking “[a]ny and all call records from any cell
phone(s) or mobile devices associated with Kimberly Dawn Wright from July 1, 2022
until August 1, 2022, including but not limited to” two cell-phone numbers. 3
[Emphasis added.] From those same two specific cell-phone numbers—but “not
limited to” them—RPIs also sought “[a]ny and all text message[s] . . . from July 1,
2022 until August 1, 2022,” and “any and all records demonstrating usage/data from
any cell phone(s) or mobile devices associated with Kimberly Dawn Wright from July 1,
Pringle and Herrian were subsequently deposed, but not before RPIs sent their 2
subpoenas duces tecum at issue here. In the interest of the parties’ privacy, we do not list the requested cell-phone 3
numbers.
Free access — add to your briefcase to read the full text and ask questions with AI
In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00692-CV ___________________________
IN RE PHYLLIS MICHELLE WRIGHT AND ZANE WRIGHT, AS THE EXECUTOR OF THE ESTATE OF KIMBERLY WRIGHT, Relators
Original Proceeding 89th District Court of Wichita County, Texas Trial Court No. DC89-CV2024-0924
Before Kerr, Bassel, and Wallach, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
I. Introduction
In July 2022, Kimberly Wright was hit by a forklift at her job site and later died
from her injuries. Relators Phyllis Michelle Wright and Zane Wright, as the executor
of Kimberly’s estate, sued various real parties in interest (RPIs), many of whom have
been trying since then to obtain Kimberly’s cell-phone information to ascertain
whether she was using a cell phone at the time of the accident. Relators have objected
to the overbreadth of these discovery requests and have repeatedly contended that the
RPIs have failed to meet their burden under the requirements of In re Kuraray America,
Inc., 656 S.W.3d 137 (Tex. 2022) (orig. proceeding), discussed below.
After the trial court denied relators’ motion to quash subpoenas duces tecum
sent by some of the RPIs to AT&T and T-Mobile and ordered that their access to
Kimberly’s cell-phone data would be limited “to the 24 hours preceding the incident
that makes the basis of this suit,” relators filed this petition for writ of mandamus. In
two issues, relators assert that the trial court abused its discretion by denying their
motion to quash, by allowing the collection of Kimberly’s cell-phone data, and by
ordering her cell-phone data to be discoverable for twenty-four hours before the
accident. They also complain that the trial court’s order “is silent on any procedure
restricting the collection of Kimberly’s . . . private photos, text message content,
financial information and/or any other data unrelated to the use of the phone at the
time of the incident.” And they point out that a discovery order compelling
2 “production beyond the rules of [civil] procedure is an abuse of discretion for which
mandamus is the proper remedy.” See id. at 142 (quoting In re Nat’l Lloyds Ins., 449
S.W.3d 486, 488 (Tex. 2014) (orig. proceeding)).
Because relators’ mandamus record1 reveals an abuse of discretion for which
no adequate appellate remedy exists, see id., we conditionally grant partial relief, vacate
the order’s overbroad temporal limit, and remand with instructions for the trial court
to more narrowly tailor its order for access to Kimberly’s cell-phone data.
II. Discovery of Cell-Phone Data
Trial courts have broad discretion to decide whether to permit or deny
discovery. In re K & L Auto Crushers, LLC, 627 S.W.3d 239, 247 (Tex. 2021) (orig.
proceeding). In determining whether the trial court has abused its discretion, we may
not substitute our judgment for the trial court’s determination of factual or other
discretionary matters. In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (orig.
proceeding). But because a trial court has no discretion in determining what the law is
or applying it, we review its decisions on questions of law and application-of-law-to-
fact questions much less deferentially. Id. Ordering discovery that exceeds what our
procedural rules permit is an abuse of discretion. In re Off. of Att’y Gen., 702 S.W.3d
360, 364 (Tex. 2024) (orig. proceeding); see K & L Auto Crushers, LLC, 627 S.W.3d at
1 The day after relators filed their petition, we requested a response from RPIs. See Tex. R. App. P. 52.8(b) (providing that if the court is of the tentative opinion that relator is entitled to the relief sought, the court must request a response if one has not been filed). RPIs’ response was filed late and provides no justification under the Kuraray standard for the twenty-four-hour time frame permitted by the trial court.
3 252 (stating that discovery requests and orders are overbroad if they are not properly
tailored with regard to time, place, or subject matter).
The supreme court has identified key principles to guide the management of
cell-phone-data discovery. See Kuraray Am., Inc., 656 S.W.3d at 142. Specifically, to be
entitled to production of cell-phone data: (1) The party seeking it must allege or
provide some evidence of cell-phone use by the person whose data is sought at a time
when it could have been a contributing cause of the incident on which the claim is
based; (2) If the party seeking discovery meets this initial burden, the trial court may
order production of cell-phone data if its temporal scope is tailored to encompass only
the period in which the cell-phone use could have contributed to the incident; and
(3) If the initial production indicates that cell-phone use could have contributed to the
incident, then a trial court may consider whether additional discovery regarding cell-
phone use beyond that time frame may be relevant. Id.
Long before the supreme court specifically addressed the production of cell-
phone data in Kuraray, it addressed the need to guard against undue intrusion in the
production of electronic information. See In re Weekley Homes, L.P., 295 S.W.3d 309,
322 (Tex. 2009) (orig. proceeding). In Weekley Homes, the supreme court emphasized
that “sensitive information should be protected[,] and the least intrusive means should
be employed.” Id. at 322–23 (granting relief when “the harm that might result from
revealing private conversations, trade secrets, and privileged or otherwise confidential
communications[] cannot be remedied on appeal”).
4 A. Background
1. Mandamus record documents
The mandamus record before us contains conflicting information about
whether Kimberly was using her cell phone at the time of the accident. A January 20,
2023 OSHA citation stated, “There is a video of the incident, but the footage
captured does not clearly show the employee using her cell phone.” [Emphasis added.]
The citation also stated, “During the investigation, NO cell phone was present or
found.” In September 2025, RPIs listed Chance Pringle, the forklift driver, and
Patrick Herrian, a supervisor, in their disclosures as persons expected to testify about
Kimberly’s use of a cell phone or headphones at the time of her death.2
In October 2025, RPIs sent two notices of subpoena duces tecum—one to
AT&T and the other to T-Mobile—seeking “[a]ny and all call records from any cell
phone(s) or mobile devices associated with Kimberly Dawn Wright from July 1, 2022
until August 1, 2022, including but not limited to” two cell-phone numbers. 3
[Emphasis added.] From those same two specific cell-phone numbers—but “not
limited to” them—RPIs also sought “[a]ny and all text message[s] . . . from July 1,
2022 until August 1, 2022,” and “any and all records demonstrating usage/data from
any cell phone(s) or mobile devices associated with Kimberly Dawn Wright from July 1,
Pringle and Herrian were subsequently deposed, but not before RPIs sent their 2
subpoenas duces tecum at issue here. In the interest of the parties’ privacy, we do not list the requested cell-phone 3
numbers.
5 2022 until August 1, 2022, including but not limited to” the two specific cell-phone
numbers. [Emphases added.]
Relators then filed their motion to quash based on overbreadth and sought a
protective order. They argued that RPIs had not met their burden under Kuraray but
that, even if they had, “the relevant time frame would be 15 minutes before the
incident until the incident.” In their response to relators’ motion, RPIs pointed out
that they had previously tried to obtain more narrow discovery, “including limiting the
time frame as the one-hour period of the 30 minutes immediately preceding and
immediately following the time of the accident.”
Pringle and Herrian were deposed after RPIs issued their subpoenas but before
the trial court’s ruling on the motion to quash. In the deposition excerpts provided in
the mandamus record before us, Pringle testified that he had not noticed that his
forklift had hit Kimberly until she said “help,” and he did not mention seeing her with
a cell phone. His cell phone had been in his pocket, and after dismounting the
forklift, he stepped away and called for help. Herrian, on the other hand, testified that
there had been a cell phone on the floor “a ways away”—more than ten feet—from
Kimberly after the accident. The trial court heard relators’ motion to quash
approximately ten days after the depositions.
2. Hearing and order
At the hearing, relators argued that RPIs failed to meet the burden under
Kuraray to show that Kimberly had been using the cell phone at the time and that the
6 cell phone had contributed to the incident, directing the court to Pringle’s and
Herrian’s testimonies4 and a “still shot photo from the surveillance video . . .
approximately 30 to 35 seconds before the incident occurred” as being insufficient to
support proof that she had been using her cell phone. RPIs’ counsel countered that
the photographic evidence plus Herrian’s confirmation that a phone had been seen at
the scene was “enough to put this cell phone at issue here.”
The record contains a copy of the challenged screenshot—date and time-
stamped July 30, 2022, 13:00:28—which RPIs attached to their response to the
motion to quash. The zoomed-in portion of the screenshot is blurry, easily lending
itself to either party’s interpretation. At the hearing, RPIs’ counsel acknowledged that
“it is hard to see,” but that “there’s at least an indication that the left hand is cocked
up with something at her ear.” RPIs’ counsel stated that the screenshot was “maybe
10 seconds before the accident.” RPIs’ counsel also informed the trial court, “We’ve
asked for the cell phone. [Relators] have indicated they can’t find it,” and he stated,
“There wouldn’t be subpoenas to third-parties if [relators] had produced these records
in a tailored fashion, but they haven’t done it yet.”
RPIs’ counsel also asserted—contrary to the broad requests in the subpoenas
duces tecum—“We don’t want her personal data. We don’t want her photos. What
Relators’ counsel informed the trial court that Pringle’s transcript was not yet 4
ready but that Herrian’s transcript had been received that morning, and he read the portion about a cell phone “a ways away” and more than ten feet away, into the record at the hearing.
7 we want to know is whether she was on this phone at the time of the accident.” He
further argued, “We know the messages she sent and calls she made three days before
the accident are not relevant. What is relevant to us is the time surrounding the
accident and confirming whether or not she was on the cell phone.” He stated that
what RPIs wanted was call logs showing data usage and text message logs “showing a
time stamp and a number that the text message might have been sent to,” but “not
[the] substance of the text messages.”
Relators’ counsel responded that RPIs’ request was overbroad in that their
subpoenas had asked for an entire month of Kimberly’s cell-phone data, when “[t]hey
don’t need to know what she was doing on July 1st,” and that she had “all kinds of
things on her phone that are personal that . . . [had nothing] to do with this incident at
all.” The trial court asked RPIs’ counsel whether the subpoenas would have been
sought if relators had produced the cell phone, and RPIs’ counsel replied, “No. We
would probably be here arguing about what type of forensic examination should be
done on the phone, but we would not have gone to . . . the cell phone providers to try
to get data that we can get from the phone.”
As the hearing concluded, after the trial court denied relators’ motion, relators’
counsel responded, “Are you gonna allow them to get a whole month?” The trial
court replied, “It should be narrowly tailored. I don’t see why they need more than 24
hours prior to the accident. . . . I don’t know why they would need six hours prior to
the accident, but I’d say no more than 24 hours before the accident.”
8 The trial court’s order denying relators’ motion ordered Kimberly’s cell-phone-
data production to be “limited in time to the 24 hours preceding the incident that
makes the basis of this suit.”
B. Application
Relators complain that the trial court ignored the Kuraray guidelines and
“allowed too broad of a time period for which cell phone records may be sought and
obtained” despite its acknowledgment that twenty-four hours—or even six hours—
before the accident would be too broad.
Based on Kuraray’s principles set out above, there is some evidence from which
the trial court could have reasonably concluded that Kimberly might have been using
a cell phone at the time of the accident and that it could have been a contributing
cause of the accident based on the screenshot from the surveillance video and
Herrian’s testimony. See Kuraray, 656 S.W.3d at 142 (stating that the trial court may
order production after the seeking party alleges or provides some evidence of cell-
phone use by the person whose data is sought at a time when it could have been a
contributing cause). We overrule relators’ first issue.
However, contrary to Kuraray’s principles, the allowable time frame for the
requested data set out in the trial court’s order was overbroad, and the order did not
provide for the protection of sensitive information. See id. (stating that production
may be ordered if the temporal scope is tailored to encompass only the period in
which the cell-phone use could have contributed to the incident); Weekley Homes, 295
9 S.W.3d at 322 (requiring protection of sensitive information). That is, the trial court
noted at the hearing that it did not know why RPIs would “need six hours prior to the
accident,” and RPIs’ counsel at the hearing acknowledged that the only time in issue
was that surrounding the accident and stated in their response to the motion to quash
that they only needed “the one-hour period of the 30 minutes immediately preceding
and immediately following the time of the accident.” And the order contained no
limits on the type of cell-phone data RPIs sought in their subpoenas. Accordingly,
the trial court abused its discretion when it granted access to the “24 hours preceding”
the accident and failed to add any sort of protective limits to the information sought.
We sustain relators’ second issue.
III. Conclusion
Having sustained relators’ second issue, we conditionally grant partial relief and
remand the case to the trial court to comply with Kuraray by narrowing the access
period to reflect the crucial minutes before the accident. See 656 S.W.3d at 142; see also
In re Mesilla Valley Transp., No. 04-23-01067-CV, 2024 WL 2034732, at *6 (Tex.
App.—San Antonio May 8, 2024, orig. proceeding) (applying Kuraray and granting
relief from overbroad order when requesting party failed to establish why he needed
cell-phone data from four hours before the collision).
We further direct the trial court to limit the order to exclude the items that
RPIs’ counsel stated they were not pursuing, contrary to their subpoenas’ broad
requests—Kimberly’s personal data, photos, and the contents of text messages, and
10 messages and calls outside of “the time surrounding the accident”—to comply with
the supreme court’s Weekley Homes requirements. See 295 S.W.3d at 322; see also Mesilla
Valley Transp., 2024 WL 2034732, at *7 (granting relief when discovery order “fail[ed]
to incorporate adequate protections for [the cell-phone owner’s] privacy interests”);
In re Huang, No. 01-22-00594-CV, 2023 WL 8262837, at *7 (Tex. App.—Houston [1st
Dist.] Nov. 30, 2023, orig. proceeding) (mem. op.) (granting relief when trial court’s
order failed “to include limitations as to temporal scope of production of cell phone
data and protection of confidential, sensitive, or personal data”). The writ will issue
only if the trial court fails to comply with our instructions.
/s/ Dabney Bassel
Dabney Bassel Justice
Delivered: January 22, 2026