Mary Seminara-Schostok
In one of Illinois’ first opinions regarding electronic discovery, the 2nd District Appellate Court ruled the Lake County judge presiding over plaintiff Robert Carlson’s personal-injury case should not have ordered him to copy and produce the contents in all of his computers.
Such a production is contrary to discovery protocol and could invade his constitutional right to privacy, the panel found.
The defense hoped to sift through metadata stored on the plaintiff’s several personal and work computers, then have experts determine whether his computer usage and habits corresponded with impairments the plaintiff alleges he or she suffers after an underlying car crash in the case.
Searching another party’s computer isn’t completely out of the question, the panel ruled. It’s allowed in circumstances where the computer is directly involved in the case or instances in which evidence exists of a responding party’s prior discovery violations.
“In this case, neither circumstance is present: [T]here is no record of noncompliance with discovery, and there is no particular nexus between Carlson’s computers and the legal claim, as this is an ordinary personal injury case,” Justice Mary Seminara Schostok wrote in a 32-page majority opinion published on Dec. 15.
The decision vacates Lake County Circuit Judge Diane E. Winter’s September 2015 order compelling Carlson to produce his computers for forensic imaging and remands his case for consideration under proper relevance and proportionality standards.
Sole practitioner Michael W. Rathsack, who represented Carlson on appeal, said he was pleased with the panel’s decision because it provides guidance to Illinois’ legal community on how to handle electronic discovery.
“This is why you want to practice appellate law — to help the courts develop law,” he said. “[The opinion] is going to let the parties know what they can do and can’t do, so it’s going to prevent fights like this. Once you have a set of rules, then everybody knows how to play the game.”
In April 2012, two months after Carlson began working in Baxter International’s IT department, his vehicle was rear-ended by a bus operated by James Jerousek.
In his April 2014 complaint, Carlson sued Jerousek as an agent of Olson Transportation and also named business owner Robert Olson. Among other damages, his lawsuit alleged Carlson suffered disability including cognitive difficulties, emotional distress and disfigurement.
One month later, the defendants served interrogatories on Carlson seeking identification of all blogs, web forums and social networking sites he has belonged to since the incident; his internet, telephone and cellphone providers; and all relevant responsive login information.
Carlson objected on grounds of overbreadth, undue burden and irrelevance, but he indicated he had a Facebook and LinkedIn account and produced his personal web address, cellphone number and cell carrier.
Carlson was also served requests to produce any document — both physical and electronic — of e-mails, online posts and communications that relate to his lawsuit allegations. The requests also sought identification of any responsive document that was deleted or destroyed. Carlson objected on the same grounds as his interrogatory objections.
The defendants then filed a motion to compel, arguing Carlson had not produced any electronic information such as communications or e-mails. Winter ordered that he perform his due diligence to recover all e-mails and relevant social networking materials relating to his lawsuit’s allegations.
“He had three or four personal computers and a tablet. Then he had a work computer, which was owned by Baxter International,” said David J. Vander Ploeg Jr., a partner at Hanna Vander Ploeg LLC who represents Carlson in the trial court. “His life is computers, and because he’s on the computer so much, the defendants wanted to go in and search his computers.”
Carlson again refused to produce his computers for discovery, and the defendants filed a motion to compel the inspection of his computers and his disclosure of e-mails, web addresses and social media websites.
They argued that since his complaint alleges his ability to perform work tasks had been impaired by the collision, they should be able to inspect whether such claims were overstated. The defendants also argued Carlson had produced a noncurrent symptom log containing language they believed could have come from internet searches, so they wanted to be able to inspect his computer usage and stored internet searches since the incident.
Carlson argued the defendants lacked a basis for such an intrusive and broad discovery request since his computers were not the case’s focal point.
In July 2015, during oral arguments on their motion to compel, the defendants contended they could use a computer expert to retrieve his work computer’s metadata that would show how long it has taken Carlson to perform his work tasks.
They contended they also wanted to inspect his personal computers to determine whether he spent long overnight hours playing computer games so they could argue his concentration was sound enough for the games and his activity is hindering his work performance rather than any injury relating to the collision.
In September 2015, Winter ordered Carlson’s personal and work computers to undergo forensic imaging — which effectively creates a mirror copy of the computers’ contents — to be inspected by an expert using specific search terms. She also entered a protective order that called for the parties to work together to restore any private information accidentally obtained back to confidentiality.
Winter found Carlson in friendly contempt of court and fined him $500 in November 2015 after he again refused to produce the computers.
In vacating Winter’s forensic imaging order, the 2nd District appeals panel noted Illinois’ lack of case law on electronic discovery but noted the Illinois Supreme Court’s discovery rules set out a process by which the responding party will diligently search for, identify and produce all relevant information the requesting party seeks.
“They do not permit the requesting party to rummage through the responding party’s files for helpful information,” Schostok wrote.
The panel also held parties in discovery are also entitled to their constitutional protection against unreasonable invasions of privacy. It noted a discovery request’s reasonableness is weighed by considering its relevance to a lawsuit’s issues and its proportionality — which dictates that information need not be produced if the burdens of doing so outweigh its benefits.
But discovering electronically stored information (ESI) presents different unique challenges such as incurring higher production costs, requiring a technical expert or heightened privacy concerns, the panel found. And since examining electronic information raises unique privacy concerns, it held, any case-by-case attempt to do so must also be considered differently.
In finding that Winter abused her discretion in ordering the computers’ forensic imaging, the panel reiterated the Supreme Court’s discovery rules for one party to request and the other to search its own documents and computers to respond.
“There is no provision allowing the requesting party to conduct its own search of the responding party’s files — regardless of whether those files are physical or electronic,” Schostok wrote.
The panel also ruled the forensic imaging order was not justified when considered for relevance and proportionality.
It found the information the defendants’ sought “was not clearly specified and the probative value of that information was questionable, while the burden to Carlson’s privacy interest was significant.”
The defendants could have also used other avenues to obtain the information it sought, the panel found.
“For instance, there is no indication that they ever sought to determine, through requests to admit or deposition questions, whether Carlson performed internet searches on the symptoms they found suspicious, nor did they ever request that Carlson supplement his previous production of his symptoms log.
That is where proportionality comes into play, the panel noted, as a forensic image of all of Carlson’s computers would yield “an enormous amount of data that goes far beyond” the relevant issues in his lawsuit.
“A request to search the forensic image of a computer is like asking to search the entire contents of a house merely because some item in the house might be relevant,” Schostok wrote.
Vander Ploeg said the panel’s decision is important because it effectively holds that “just because a lawsuit is filed doesn’t mean the injured party has to open up their entire lives for discovery.”
Justice Ann B. Jorgensen concurred in the opinion, Robert Carlson v. James Jerousek et al., 2016 IL App (2d) 151248.
In a two-page special concurrence, Justice Robert D. McLaren held the defendants lack evidence to support their contention that the metadata in Carlson’s computers could be used to establish any change in his brain by interpreting how his brain was using the computers.
“Defendants relate that a computer expert or experts will have to be consulted to extract and interpret the metadata. The trial court took it on faith that it could be done,” he wrote. “Extracting the information is one thing; interpreting it in the manner suggested is another.”
The problem with the defendants’ argument, McLaren wrote, is that they fail to cite any authority which “suggests or implies” that collecting and interpreting metadata relating to computer operation is acceptable for diagnosing the operator’s possible brain damage, “regardless of the type of expert involved.”
Melissa H. Dakich, an associate at Cray Huber Horstman Heil & VanAusdal LLC who represents the defendants, could not be reached for comment.