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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.