There has been little guidance from the courts in Illinois about electronic discovery. The Illinois Supreme Court has changed the rules a little bit to accommodate electronic issues. But for the most part we treat electronic discovery the same way we treat paper discovery. Facebook posts are discoverable to some extent and get used in the courts. Electronic documents are discoverable under the discovery rules.
The appellate courts are slow to get cases because unless a litigant wants to take the time and money fighting about it the issues frequently just get resolved at the trial courts, without appellate review.
However, the appellate court recently got a shot to make some law in the case entitled Carlson v Jerousek 2016 IL.App (2d) 151248. The case got to the appellate court in the normal way for a discovery issue. The plaintiff took a friendly contempt after the court ordered him to comply with its order. The court had ordered that the defense could do a forensic image of all his 5 computers.
The Plaintiff had been in a car wreck, which he claimed caused cognitive difficulties that affected his ability to do his work as a computer analyst, so he had to use computers to work. The defense accepted liability for the wreck, but was skeptical about the cognitive problems the Plaintiff claimed and wanted to see his computers to see if he really had a brain injury.
There is a wrinkle in the ownership of the computer because the Plaintiff’s employer – Baxter – owned the computer instead of the Plaintiff. Plaintiff leased the computers from the employer. The employer was not a party to the case, and did not participate in the appeal.
The court ordered the production of the computers for imaging. Plaintiff’s employer said the corporate policy prevented the sharing of its computers and any restricted information with anyone outside of Baxter. Plaintiff could be disciplined and/or lose his job if he delivered the work computer for imaging.
The appellate court made an interesting distinction, which is useful in cases involving electronic discovery. The court noted that the party normally goes through their files to see if there is anything discoverable. The other party, seeking discovery, is not allowed to “rummage through” the parties documents. In the case before the court this means that the defense could not create a mirror image of the Plaintiff’s hard drives and report to the court, as it wished.
The court cited the Illinois Constitutional right to privacy, which is broader than in the United States Constitution.
The court discussed “proportionality” at length, explaining that the burden of production is a big factor in what is discoverable, even though there is little case law on proportionality, because it is new to the Supreme Court Rules. So, the court drew on federal rules caselaw, after which the Illinois rule was drafted. The court said that the proportionality analysis applies to electronically stored information (ESI). If said the burned of producing ESI is “presumably” high. It also said the comments to the rule “suggests that these categories of ESI are presumptively non-discoverable, shifting the burden to the requesting party.” It cited Colorado’s analysis of this situation as helpful, but deferred to the Illinois Supreme Court to formally adopt the analysis.
The court said that most people cannot lug around all the normal mail they got in the last several months. However, computers make access to all email possible, if not expensive.
The appellate court also said the trial court could not order the production of someone else’s (Baxter’s) computer with a request to produce. Only a subpoena would suffice, for obvious reasons.