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Illinois Appellate Court Curbs Defendant’s Appetite for Plaintiff’s Computer Data

Handing a win to plaintiffs and their lawyers, the Second District Appellate Court vacated an order compelling the plaintiff to allow forensic imagining of personal computers used by him. In Carlson v. Jerousek, 2016 IL App (2d) 151248, the plaintiff brought a personal injury action against a motorcoach company that owned and operated a bus that rear-ended him. The victim alleged he suffered disability, emotional distress, disfigurement and loss of a normal life due in part to a brain injury. The defendants admitted liability but contested the extent of the plaintiff’s damages.

In an attempt to undermine the plaintiff’s credibility regarding his brain injury, the defendants moved to compel discovery of “electronically retrievable information” seeking full access to the plaintiff’s five personal computers and a laptop leased to him by his employer for forensic imaging. They were after metadata the would illustrate how long it took the plaintiff to complete tasks as well as his gaming habits that might demonstrate his ability to concentrate. The court granted the defendant’s motion. On reconsideration the plaintiff offered an affidavit from his employer’s counsel attesting the company laptop contained restricted information. The trial court refused consideration of the affidavit. When plaintiff still refused to produce the computers the court held him in “friendly contempt.”

On appeal the court applied a balancing test weighing both the proportionality rule and the constitutional right to privacy to find that the defendant’s discovery request was overly broad and intrusive and might ultimately lead to no discoverable information. In an extensive opinion analyzing the treatment of Electronically Stored Information or “ESI” and the nature of forensic analysis as discussed by other courts, the court ironed out a framework for evaluating such discovery requests. The requesting party must show that, (1) there is 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. The opinion makes clear that due to the sheer volume of information stored on a computer, it could contain massive amounts of personal information or confidential business data. Thus the affidavit from plaintiff’s employer’s counsel was relevant. Also, because there is a myriad of ways in which the data can be used, the defendant had to focus the request for ESI. It suggested an expert would aid in narrowing the scope of the request and directing the search thus making a litigant’s argument more compelling.

Plaintiff’s attorneys should be emboldened that Illinois courts will protect their client’s electronically stored information from such an intrusive fishing expedition. Counsel should keep the Carlson case close at hand as a guide not just to block such discovery, but also to create a viable discovery request when ESI will serve the plaintiff’s purposes.

Fraternity Brothers May be Responsible When Hazing Results in Death by Alcohol

Spring party season is just around the corner on college campuses all over the country. Greek Week and various fraternity and sorority social activities punctuate the landscape as students sprint to finish out the academic year. But there is an underbelly to this culture that is about to be examined by the Illinois Supreme Court in reviewing a case of fraternity hazing that is the stuff of nightmares for parents sending their not yet adult children off to school.

In the case of Bogenberger v. Eta Nu Chapter of Pi Kappa Alpha International, David Bogenberger and his fellow pledges were required to drink such massive amounts of alcohol at an event that they were laid in the basement of the fraternity house in “positions so they would not choke [on their own vomit].” Fraternity members allegedly were told not to call for medical help for pledges who became unconscious and ordered to delete photos and videos of the event. David died with a blood alcohol level of 0.43.

Notwithstanding these egregious facts, an action by David’s father did not survive motions to dismiss. He faced longstanding precedent regarding so-called “social host liability” founded on the public policy that anyone selling or giving alcohol may not be held liable for the actions of the consumers of alcohol.

Offering a narrow opening for plaintiffs, the appellate court scrutinized the fraternity’s actions and found the plaintiff could state a claim for negligence based on the fraternity’s conduct that resulted from David’s required participation in a fraternity event and the actions the defendants undertook in violation of the Illinois Hazing Act, a criminal statute. The court also said that the elected officers and pledge board members of the local fraternity chapter were acting within the scope of their authority when they planned and executed the event, so this could give rise to liability as well.

The court would not allow claims to proceed against any other named defendants such as the national and international branches of the fraternity, nor other non-fraternity participants in the melee. The broader arms of these fraternal organizations protect themselves by paying lip-service to a no-hazing policy that seems to satisfy insurers and courts, but is an affront to grieving parents who rely on these entities to actually enforce these policies, not turn a blind eye with impunity. At least the Bogenbergers have some hope that their son’s death will not be in vain and the individuals who sacrificed their character and integrity in saving their own skin at the expense of their “little brother” will learn loyalty and friendship means standing up and sometimes even standing alone.

Lawyers, Clients and the Matrix of Electronic Communication

The pervasiveness of electronic communication, through emails and texting, or on social media platforms like Facebook, Instagram, Twitter, Snapchat and the next new thing, is fraught with challenges for lawyers and litigants. Attorneys have to navigate the terrain on multiple levels: compliance with professional ethics and governing law, and meeting, or sometimes dashing, client expectations.

Lawyers must set the gold standard of legal compliance, so adhering to our professional ethics and current law serves all parties by demonstrating model behavior. In recent years, the attorneys’ ethics rules began requiring attorneys to maintain a proficiency in and understanding of the benefits and risks of relevant technology (see RPC 1.1, Comment 8). This has broad applications, but overall it means that we have to gain an understanding of the technology that affects our clients: plaintiffs, in my case.

Since a plaintiff’s posts on social media like Facebook, Instagram or Snapchat can be misconstrued to undermine a claim, it is up to me to advise my clients of the consequences of their social media activity and warn them against posting. The fact that an account has specific privacy settings does not shield posts on social media from discovery, these self-established barriers do not apply to the judiciary. Ethics rules bar attorneys from engaging in deceit to gain access (see RPC 8.4) but they are not precluded from issuing a formal discovery request or subpoena, rather it is imperative under the same ethics rules that they do so if it could benefit their client.

Once embroiled in litigation, plaintiffs must expect that any communication generated electronically, not just social media, but texts and emails, is fair game; and because it was generated electronically, it likely has been preserved on a server or in a cloud somewhere up there. Indeed, if it is relevant to the litigation the party may also be affirmatively compelled to preserve it. This may work to our advantage, but in most cases it can be detrimental as it is plaintiff’s burden to prove both that the defendant is at fault and that they were injured to the extent claimed. You can imagine the glee when a defendant’s attorney finds a photo of the plaintiff dancing after claiming disability stemming from his injuries following a motor vehicle accident. This fleeting snapshot, that may represent the 10 painful seconds the plaintiff was able to stand for the father-daughter dance at his oldest’s wedding, may sink his claim and paint him as liar. This is why plaintiff’s attorneys are so vigilant because the virtual representation of the plaintiff oftentimes has little relationship to the truth.

Don’t Let Rule 213 Disclosure Abuses Derail Your Client’s Medical Malpractice Case

I am a ferocious and tireless advocate on behalf of plaintiffs. Some of my toughest battles are in the medical malpractice arena. Juries have a hard time seeing past that benevolent white coat perched atop that white horse even when the victim is a badly injured child or a lost loved one who has been forever changed by a medical mistake. The battle can be a bloody one to be sure.

My work on behalf of victims of medical negligence begins long before the trial. I am a proponent of careful preparation and proactive motion practice to ensure that plaintiffs have every advantage at a fair trial of their claims. One of the major abuses I see is the tactical use of Illinois Supreme Court Rule 213(f)(3) regarding the disclosure of expert opinion. Illinois courts tout a “bright line rule” that if an expert opinion is important or material to the case then the bases for that opinion must be timely disclosed. Notwithstanding this rule I have seen many abuses that too often go unchecked at trial resulting in unfair surprise and prejudice, most often, to the plaintiff.

Some physician experts don’t do their homework during the course of answering interrogatories or in advance of a deposition. It is not the job of the deposing attorney to facilitate the development of the opposing expert’s theory or bases for the opinion—that work is supposed to be done before they are sworn in to testify. Yet I do not see enough judicial activism to hold the party proffering the new opinions or bases to the tenets of Rule 213.

It may seem like plaintiffs are more likely to abuse this rule, but I think the data is skewed. As we all know, the odds are stacked against medical malpractice plaintiffs. Many of the cases that go up on appeal on this issue are the rare plaintiff’s verdicts that are well-funded by the deep-pocket institutional defendants (see, e.g. Morrisroe v. Pantano, 2016 IL App (1st) 143605) while the plaintiffs who suffered a not guilty verdict have fewer resources to challenge the abuses of Rule 213 that potentially sabotaged their trial (however Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (1st Dist. 1999) is a beacon of hope holding a defense expert’s feet to the fire).

The common loophole for opinions that violate Rule 213 is that the testimony states a “logical corollary” to the disclosed opinion rather than a new basis. If it sounds like a subjective phrase, it is. I have not seen courts define the term so this argument may carry the day; and with the admission of expert testimony being within the sound discretion of the trial court it becomes a Herculean task to overturn on appeal. Nevertheless, I recommend that plaintiff’s attorneys remain vigilant in both the full disclosure of their own experts’ opinions and bases, and aggressively holding defense experts to the content of their disclosures through motions in limine and tenacious objection forcing trial judges to reign in testimony that could turn the tide against plaintiffs.

Hello Winter! A Good Citizen’s Guide to Snow and Ice Removal

Laird M. Ozmon, Attorney at Law

Wednesday, January 12,  was a typical winter day in Illinois, waking up to the treachery overnight rain, turned to ice, turned to snow wreaked on the roads and sidewalks. Pedestrians and motorists alike face the hazards of snow and ice and the potential for personal injury. You might ask, what responsibilities do I have to do my part to clear or remove snow and ice on my property to prevent injury? The answer is that residential property owners have no duty to clear natural accumulations of snow and ice. Next question, do I face a Catch-22 scenario where I’m only responsible if I actually endeavor to remove the snow and ice and someone deems that I did so negligently? Illinois lawmakers considered that when enacting the Illinois Snow and Ice Removal Act of 1979. The Act grants immunity (freedom from legal responsibility) to residential property owners when pedestrians claim injury from negligent snow and/or ice removal efforts. It is designed to encourage residential property owners to follow their good citizen instincts to clear natural accumulations of snow and ice from their walkways and driveways. So, shovel and salt to your heart’s content, your neighbors will thank you.

But, as is pretty typical with the law, that’s not the end of the story. There are facts that will bring the actions of residential property owners under scrutiny and could give rise to liability. For instance, a property owner can create an unnatural accumulation of snow or ice through such things as improperly placed downspouts or changes to the surface grade. The Act does not protect the owner under such circumstances. Interestingly, the Illinois Supreme Court recently settled a difference of opinion between state courts on the application of the Act.

A plaintiff was injured when she slipped and fell on the sidewalk at her condominium complex eleven days after a snow removal service hired by the condo association cleared the sidewalks. She claimed the ice was formed due to unnatural conditions from downspout drainage and defects in the design and maintenance of the property. The trial court ruled the Act barred the suit. The appellate court disagreed and found the Act’s immunity was limited to the consequences of snow removal efforts so the suit could go to trial. The Supreme Court concurred and adopted this narrow view of the Act stating it does not extend to immunize owners from claims of liability from injuries allegedly caused by icy sidewalks which result from an otherwise negligent failure to maintain the premises. Murphy-Hylton v. Lieberman Management Services, Inc., 2016 IL 120394 (December 1, 2016). The moral to this story is that residential property owners must be mindful of conditions and defects on their property that magnify the perils of our beloved Illinois winters.

Laird M. Ozmon

Laird Ozmon Appears Before Illinois Supreme Court

In May Laird appeared before the Illinois Supreme Court as co-counsel in a seminal case involving a class of taxpayers and individuals and institutions who pay foreclosure fees in the State of Illinois. The case challenges the Illinois Housing Development Act that imposes a fee on litigants as a prerequisite to their access to Illinois courts. The plaintiffs argued equal protection violations and that the offending legislation constitutes a general welfare program that permits the Executive Branch and even municipal officials, including City of Chicago officials, to use the funds for general revenue rather than restricting the use of those funds solely to address persons already within the court system. Consistent with his tireless efforts on behalf of plaintiffs, Laird believes that this legislation should be set aside because it actually imposes a tax, not a fee, on litigants that is used support a general welfare program.

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