In Carlson v. Jerousek, et. al., Case No. 15-1248 (Ill. App. Ct., Dec. 15, 2016), Plaintiff sued Defendants when his car was rear-ended by a bus operated by Defendants. He alleged physical and cognitive disabilities, emotional distress, disfigurement, and loss of normal life. Defendants admitted liability but contested the extent of Plaintiff’s damages.
During discovery, Defendants sought information about Plaintiff’s online presence, including web addresses and usernames for blogs and social media, as well as all his internet and cell phone providers with login information. Plaintiff objected, but provided his cell phone number and carrier. He also stated that he had LinkedIn and Facebook accounts. Defendants did not move to compel more information.
Defendants then asked for emails, online posts and communications about issues related to the lawsuit, including ESI, and asked Plaintiff to identify any documents he had destroyed or deleted. “Documents” was defined as both physical documents and ESI. Plaintiff again objected but also stated that there were no responsive documents and/or Defendants already had everything. After a Motion to Compel, the court ordered Plaintiff to conduct “due diligence” to recover the requested information from his social networking accounts. Plaintiff supplemented his response, and six months later, Defendants filed another motion seeking an order requiring Plaintiff to preserve his computers and electronic devices so Defendants could inspect them.
The trial court granted the motion in part, declining to order inspection of the hardware but requiring preservation. The court then ordered Defendants to refile the motion, which they did, seeking inspection of all Plaintiff’s electronic devices. Plaintiff argued that there was no basis for such a search. Ultimately, the trial court ordered Plaintiff to produce his devices for inspection. Plaintiff refused to comply with the order and filed a motion for reconsideration, which the court denied, and the court found Plaintiff in “friendly” contempt. Plaintiff appealed.
The appellate court set forth a lengthy discussion of ESI discovery and what categories of ESI might not be discoverable based upon the burden of producing such ESI, including fragmented data, RAM, and legacy data, among other things. The court determined that the trial court did in fact abuse its discretion in ordering the forensic imaging of Plaintiff’s computer. Defendants’ request “inverted” typical discovery protocol, which requires one party to request and the responding party to search its own records in the absence of compliance. Here, Plaintiff did comply. Further, the trial court failed to apply a balancing test when determining relevance and proportionality. The court reversed and remanded.