An Illinois appellate court recently weighed in on when it is appropriate for a litigant to inspect an adversary’s computer and how the concept of e-discovery proportionality figures into such requests. The court concluded that absent significant discovery violations, or involvement of the computer itself in the underlying claim, permitting a party to inspect another’s electronic devices violated accepted discovery protocols, was likely disproportionate to the needs of a case, and could be an invasion of privacy.
A Personal Injury Action Yields a Request to Inspect the Plaintiff’s Computers
In Carlson v. Jerousek, 2016 IL App. (2d) 151248 (2d. Dist 2016), Carlson sued a transportation company and its driver after one of its buses rear-ended him. Among other injuries, Carlson alleged the collision caused brain trauma.
During discovery, the defendants sought from Carlson both physical documents and electronically stored information (ESI). Carlson objected to many of the requests, but produced some hard copy documents. Although he produced no ESI, he disclosed he had Facebook and LinkedIn accounts.
In turn, the defendants asked the court to compel Carlson to produce electronic documents. The court agreed that Carlson must “perform due diligence” to recover relevant email messages and social media posts. Carlson supplemented his discovery responses and, six months later, the defendants sought another order from the court this time requiring Carlson to preserve information on his computers and electronic devices.
The defendants argued Carlson was obligated to preserve information on his computers so they could search the devices for “computer usage, research, and creation of litigation exhibits, including any stored record of his Internet searches since the collision. [And] inspect the metadata on [Carlson’s] computers *** to determine what work he ha[d] performed for his lawsuit, what changes, if any, he ha[d] made to the exhibits and documents he created concerning damages, what research he ha[d] conducted concerning traumatic brain injuries, how much time [Carlson] spen[t] on his computers, and what data he ha[d] recorded that he ha[d] failed to provide” to the defendants.” The defendants also argued that an examination of Carlson’s computer usage might undermine claims that the collision caused cognitive impairment.
Ultimately the court granted the motion requiring forensic imaging of the computers, and subject to a protective order, gave the defendants permission to search Carlson’s computers. Carlson appealed and the appellate court agreed with Carlson that the defendants should not be permitted to search his computers.
Civil Discovery Rules are not Blind to Privacy Rights
In its opinion, the Appellate Court of Illinois, Second District, spent some time detailing the legal principles underlying civil discovery and noted that discovery rules “do not permit the requesting party to rummage through the responding party’s files for helpful information.” The court also pointed out that “civil discovery rules are not blind to the privacy interests of the party responding to discovery. . . .” because the Fourth Amendment to the United States Constitution prohibits unreasonable invasions of privacy.
Proper Discovery Requests Seek Only Relevant and Proportionate Information
Previewing its ultimate decision, the court pointed out that reasonableness is a function of relevance in civil discovery and that even requests for relevant information are not allowed if they are disproportionate to the needs of a case. The court also observed that when deciding discovery motions, Illinois Supreme Court Rule 201 explicitly requires courts to consider whether the burden of the requested discovery outweighed its likely benefit and to determine whether discovery requests are proportionate, courts must look to both monetary and non-monetary factors including the legitimate privacy concerns of a responding party.
Turning to the electronic nature of the information sought, the court observed that discovery of ESI presents different challenges than discovery of paper documents, not the least being cost and the potential need for technical expertise. Because ESI often contains more data than physical documents (such as metadata) significantly more information may be gleaned from ESI which raises unique privacy concerns.
The court pointed out that the requirements of Illinois Supreme Court Rule 201(c)(3) specifically address challenges posed by the discovery of ESI. Notes to the rule identify types of data not generally subject to production because the burdensome nature of collecting and producing it (such as deleted data and frequently updated metadata).
If a party wants this type of data, the court concluded that they must show: (1) a compelling need for the information; (2) the information is not available from other sources; and (3) the requesting party is using the least intrusive means to obtain the information.
Permitting Litigants to Search an Opponent’s Computer is Contrary to General Discovery Protocol
Turning to the issue of whether the bus company should be permitted to search forensic images of Carlson’s computers, the court quickly answered in the negative. The court reasoned that permitting a search of the computers would be contrary to established discovery protocol where “one party requests specific information and the other party searches it own files” for responsive information. The court observed that no discovery rule permits a requesting party to conduct its own search of a responding party’s files and only in very limited circumstances is such a search permissible: when the device itself is directly involved in the cause of action or there are substantial discovery violations by the party owning the device.
Noting the absence of either circumstance in the case, the court declined to permit an examination of the forensic image of the computer.
The Request to Inspect the Computers was Disproportionate and an Unwarranted Privacy Invasion
The court also rejected the request to search Carlson’s computers on relevance and proportionality grounds observing
It is here that the balancing test of the proportionality rule comes into play. The potential utility of the discovery sought by the defendants must be weighed against the burden imposed by the discovery method the defendants have requested. Forensic imaging of all of the contents of Carlson’s computers will yield an enormous amount of data that goes far beyond the issues that are relevant to this suit, potentially including personal photographs, declarations of love, bank records and other financial information, records of online purchases, confidential information about family and friends contained in communications with them, and private online activities utterly unconnected to this suit. A request to search the forensic image of a computer is like asking to search the entire contents of a house merely because some items in the house might be relevant. Because such a search is not narrowly restricted to yield only relevant information, it poses a high risk of being overbroad and intrusive in a manner that violates the constitutional right to privacy.
Interestingly, the court also declined to permit a forensic examination of the computers because it believed much of the requested information fell within the categories of ESI specifically exempted from discovery under Rule 201. Describing some of the requested information as “data in metadata fields frequently updated automatically” and “on-line access data.”
Another reason underlying the court’s refusal to permit inspection of Carlson’s computer was its belief that attorneys for the bus company did not clearly articulate how inspecting the computers would yield the information sought. The court also believed that much of the information could be obtained by other means.
This is a good point. With some forethought and a cooperative relationship with opposing counsel, agreement may be reached and search protocols devised to obtain desired electronic information without having to sift through unnecessary data. Requesting to see every file saved on a hard drive when only a few are really needed drives up both time and costs. Rather than looking at document production of 1000 files to find the 100 documents you need, insisting on a response to an overbroad discovery request may very well require you to look at 100,000 documents to find the same 100 documents.