Carlson v. Jerousek

2016 IL App (2d) 151248, 2016 WL 7243557

• Court: Appellate Court of Illinois
• Decided: December 15, 2016
• Docket: 2-15-1248
• Status: Unpublished

Opinion

2016 IL App (2d) 151248 No. 2-15-1248 Opinion filed December 15, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

ROBERT CARLSON, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 14-L-264 ) JAMES JEROUSEK, Individually and as ) Agent and/or Employee of Olson ) Transportation, and ROBERT OLSON, ) d/b/a Midwest Motorcoach, ) Honorable ) Diane E. Winter, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Jorgensen concurred in the judgment and opinion. Justice McLaren specially concurred, with opinion.

OPINION

¶1 In this personal injury case, the defendants sought to have their expert make a copy of the

entire contents of the plaintiff’s five personal computers as well as the laptop provided to him by

his employer for work. (This copying process is referred to as forensic imaging.) The

plaintiff, Robert Carlson, refused to comply with this demand despite being ordered to do so by

the trial court and was found in “friendly” contempt. He now appeals the contempt order,

arguing that the trial court abused its discretion in ordering the forensic imaging. He also

asserts that the trial court erred in denying him leave to file an affidavit stating that his employer

owned his work laptop and that thus he could not produce it. We find that the trial court failed 2016 IL App (2d) 151248

to conduct the balancing test required for a request for forensic imaging. Accordingly, we

reverse and remand for the trial court to conduct the proper analysis.

¶2 I. BACKGROUND

¶3 In February 2012, Carlson began working as a senior computer analyst for Baxter

Healthcare. A little less than two months later, on April 11, 2012, Carlson’s vehicle was

rear-ended by a bus operated by the defendants, James Jerousek, an agent or employee of Olson

Transportation, and Robert Olson, doing business as Midwest Motorcoach. In April 2014,

Carlson sued the defendants for personal injury, alleging that he suffered disability (including

cognitive difficulties), emotional distress, disfigurement, and loss of a normal life after the

collision. The defendants admitted liability but contested the extent of Carlson’s damages.

¶4 In May 2014, the defendants served Carlson with interrogatories and requests to produce.

The interrogatories asked Carlson to provide “the name, web address and user name for all blogs,

online forums, and/or social networking websites that Plaintiff has belonged [to] and/or had a

membership” in since the collision; his “internet/e-mail, telephone and cell phone providers; ***

his internet/e-mail password[;] and all login information with address.” Carlson objected on the

grounds of overbreadth, undue burden, and irrelevance. However, without waiving these

objections, he stated that he had Facebook and LinkedIn accounts and provided his personal web

address, cell phone number, and cell phone carrier. The defendants did not move to compel any

further responses to any of the interrogatories.

¶5 The requests to produce served on Carlson defined “document” to include not only

physical documents but also electronically stored information. The requests sought emails,

online posts, and communications relating to the issues in the lawsuit. There was also a

“catch-all” request for any statement or communication in any form relating to those issues.

Finally, Carlson was asked to identify any destroyed or deleted documents responsive to these

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requests. In July 2014, Carlson responded to the requests. He objected to all of them on the

grounds of overbreadth, undue burden, and irrelevance. Without waiving these objections, he

also responded to the requests for emails, online posts, and the like by stating that there were no

responsive items other than those “already available to the defendant[s]”; to the “catch-all”

request by stating that all responsive items had already been disclosed or produced to the

defendants; and to the request for destroyed or deleted documents by stating that there were no

such items.

¶6 After exchanging correspondence, the defendants filed a motion to compel, arguing that

Carlson had not produced any “electronically retrievable information,” such as emails or other

electronic communications. The defendants asked that Carlson be required to search his

computer storage to identify responsive items. There was no request, at this point, for forensic

imaging of Carlson’s computers. After a hearing, the trial court granted the motion in part,

ordering that, as to request Nos. 10 and 12, Carlson must “perform due diligence to recover all

emails, during the relevant period, relating to issues in the complaint, and must provide a

privilege log if necessary,” and, as to request No. 11, Carlson must “perform due diligence to

recover [the requested] information *** from plaintiff’s social networking accounts.” As to

request No. 13, plaintiff was ordered to identify the responsive items he believed were already

disclosed or provided to the defendants.

¶7 In September 2014, Carlson tendered supplemental answers. There is no record of any

motion to compel Carlson to provide any further responses to this discovery.

¶8 Six months later, the defendants filed a motion seeking an order requiring Carlson to

“retain, preserve, and protect” any “computers and/or electronic devices *** so that they [could]

be inspected by the defendants.” In their motion, they noted that Carlson had testified, at his

deposition, that he possessed at least five such computers or devices. Asserting only that

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Carlson’s “knowledge and/or research of such topics has been put at issue in this case,” the

defendants sought “the opportunity to inspect and investigate the computers and/or electronic

devices in possession of [sic], used, owned, or operated by” Carlson since the collision. The

defendants therefore asked the trial court to enter the proposed order.

¶9 The trial court heard this motion on March 3, 2015. The trial court ordered the retention

and preservation of Carlson’s computers but struck the language in the proposed order allowing

the defendants to inspect the computers. It also entered a briefing schedule. The parties filed

their briefs, but, for reasons not apparent from the record, on May 13, 2015, the trial court

entered an order striking the defendants’ motion, allowing them to refile it, and scheduling the

briefing of that refiled motion.

¶ 10 The defendants filed a new motion “to compel the inspection of plaintiffs’ [sic]

computers and the disclosure of plaintiff’s emails, web addresses and social media sites.” In it,

they argued that they should be allowed to inspect Carlson’s computers because he performed his

work almost entirely on computers and he was claiming that his ability to perform some of his

work tasks had been damaged by the collision. Specifically, Carlson had testified at his

deposition that he experienced a lack of concentration, lost focus, became fatigued, and had to lie

down. The defendants were suspicious about whether these claims were overstated, noting that

Carlson’s supervisor, Andrea Schwartz, had testified at her deposition that Carlson was very

competent at his job and was an asset to his team. In addition, Carlson had prepared a log of his

symptoms on a computer. Although the log had been produced to the defendants, they argued

that he had continued to update it and had not produced the updated log to them. Further, the

symptoms were recorded using sophisticated language that the defendants believed Carlson

might have acquired through internet searches relating to symptoms of brain injury.

Accordingly, the defendants wanted to inspect Carlson’s “computer usage, research, and creation

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of litigation exhibits,” including any stored record of his Internet searches since the collision.

Without defining the term “metadata,” the defendants requested the ability to “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. Although they asserted that their requests were “narrowly

tailored,” the defendants did not propose any limitations or protections to be applied to their

requested inspection. Finally, they argued that information from any online social networking

sites used by Carlson was relevant to determining the extent of his injuries and thus should be

produced. The defendants asked the trial court to allow them to inspect all of Carlson’s

computers and electronic devices and to “allow the discovery of” his presence on social media,

his webpages, and his emails.

¶ 11 In response, Carlson argued that there was no basis for allowing such a wide-ranging and

intrusive discovery method; the computers were not the focal point of the case, and the

defendants were able to obtain information about the extent of his brain injuries in many other

ways, including the written discovery already answered, multiple depositions of several

witnesses who directly observed his work, and testing by the defendants’ own expert witness, a

neuropsychologist. In reply, the defendants argued that computerized information is, generally

speaking, discoverable, and that to deny their motion would prejudice them. At no point did the

defendants support their motion with any affidavits or other evidence from an expert in computer

technology describing the information retrievable through such an inspection or the methods that

would be used to conduct the search.

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¶ 12 In July 2015, the trial court heard oral argument on the defendants’ motion to compel.

For the first time, the defendants clearly expressed their desire to search the computer that Baxter

provided to Carlson for work as well as his own computers. The defendants argued that they

wanted to view metadata from Carlson’s work computer in order to learn whether, since the

accident, it was really taking Carlson longer to complete work tasks and whether he was really

staying later at work to complete his work. The trial court asked how the computer could tell

them that. The defendants’ attorneys acknowledged that they themselves did not know how to

use a computer to discover this information, but they asserted that a computer expert could “pull

the metadata” that would “show the task[s] that [Carlson]’s working on and how long he’s

working on them.” (Although this assertion might be correct, the record does not contain any

actual evidence supporting it.) The defendants also wanted to view Carlson’s own computers to

determine whether he was staying up late playing computer games, so that, if so, they could

argue that (a) he was still able to concentrate sufficiently to play these games, and (b) it was this

activity, not the injuries related to the accident, that was causing him to be fatigued at work.

The defendants asserted that they “were not asking for personal information,” only the metadata

about Carlson’s use of the computers, because Carlson “ha[d] made this an issue in the case” by

claiming that he was less able to perform his work, which involved using the computer.

¶ 13 Carlson pointed out the extremely broad nature of the proposed search and the relative

lack of any justification for it other than the possibility that he and the other witnesses previously

deposed were lying about the extent of his injuries. In response, the defendants said that they

were “in no way asserting” that Carlson was lying but that they had “a right to discover all

relevant information.”

¶ 14 The trial court initially expressed skepticism, noting that, although Carlson’s use of

computers was potentially relevant because he used computers in his work and for relaxation, the

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same thing was potentially true of “every plaintiff in every case.” As to any inspection of

Carlson’s work computer, that was “a no start right there” because Baxter would certainly object.

As to Carlson’s own computers, there were many other ways to get similar information without

the defendants combing through those computers: for instance, information about the extent of

Carlson’s computer gaming and even his game scores over time could be obtained through

directed subpoenas to the operators of the online games he played. Such narrowly tailored

searches would be preferable to allowing the defendants to “rifle though the plaintiff’s mail

every day to pick out what you like.” The defendants suggested that perhaps they could draft a

protective order that would identify the narrow information they sought. The trial court

indicated that it was open to such an approach but that it would have to see the draft order, and

that it would be cautious because “people put their whole lives on a computer, and that’s not

acceptable for the defense to be able to search through their entire life.” In addition, the trial

court would need expert input about exactly what information could and would be retrieved.

The trial court therefore continued the motion to compel.

¶ 15 On September 23, 2015, the motion to compel the inspection of the computers again

came before the trial court. After hearing other discovery disputes and admonishing the parties

for not treating each other in a civil or professional manner, the trial court turned to the motion.

The defendants stated that they had drafted a protective order and had sent it to Carlson, but

Carlson would not agree to it. They tendered the draft to the trial court, characterizing it as

providing that any data pulled from the computers would be given to Carlson’s attorney first, so

that privileged material could be identified and a privilege log could be prepared.

¶ 16 In fact, the draft protective order provided that an expert (presumably retained by the

defendants, although this point was not specifically addressed) would make a mirror copy

(forensic image) of the entire contents of all of the hard drives on all of Carlson’s personal

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computers and the computer he used for work. (Although Carlson’s attorney or another

designated representative could be present during the forensic imaging process, the utility of this

as a safeguard is dubious, as the order did not allow the representative any input into the imaging

process.) The defendants’ expert would then search all of the hard drives, “looking for

evidence of the existence of information relating to issues in this lawsuit, including: [1] Time

stamps indicating duration of computer usage at work or for work purposes; [2] Time stamps

indicating duration of usage for purposes of using computer games; [3] Search terms with respect

to head trauma, traumatic brain injury, icepick headaches, memory loss, unbalanced IQ, fatigue,

personality disorders, hand tremors, sleep apnea, and lack of concentration; [and] [4] Documents

created by Plaintiff with respect to his symptoms and/or research regarding the search terms

contained in subparagraph 3.” The defendants’ expert would catalogue the results of this search

in a report of findings and would also prepare an executive summary of the findings. The

expert would file both of these in their entirety with the trial court, although only the executive

summary would be public; the findings themselves would be filed under seal. The expert

would also serve a copy of the findings on Carlson’s attorney, who would have 10 business days

to redact any privileged material and prepare a privilege log. Carlson’s attorney would then

serve the redacted findings and the privilege log on the defendants’ counsel. Any “data”

claimed to be subject to the attorney-client privilege would be treated as confidential

information, which the defendants’ expert would not reveal to or discuss with the defendants’

counsel. (No mention was made of any other potentially applicable privileges.) The

protective order also included a clawback provision pursuant to which the disclosure of such

confidential information would not be deemed a waiver and counsel would cooperate to “restore

the confidentiality” of any confidential information inadvertently disclosed. However, any

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other “relevant, non-confidential information derived from the inspection” could be used in any

later hearing, motions, or at the trial of the action.

¶ 17 The defendants also represented to the trial court that they “now had testimony” that the

work computer used by Carlson (a laptop which he was permitted to and frequently did take

home) was “leased by him” and thus was within his control and should be produced by him.

(The defendants did not identify the testimony they were referring to, and no such testimony

appears in any of the depositions filed as exhibits.) Carlson disputed this, saying that the laptop

was Baxter’s and that the defendants needed to “get Baxter in here” (i.e., subpoena Baxter) in

order to gain access to that computer. The trial court responded with irritation, asking

Carlson’s attorney why he had not brought Baxter into the proceedings on the motion to compel,

saying that “[t]his is the attitude I am talking about” and that the parties should not be pointing to

each other as the one responsible for taking action to move the case forward. Despite

commenting that it seemed strange that Baxter would lease work computers to its employees, the

trial court apparently accepted the defendants’ representation that this was the case. It entered

an order requiring the forensic imaging of the computers, including the work computer, and also

entered the protective order drafted by the defendants, saying that it would “leave it to Baxter to

come in and tell us why” Carlson’s work computer should not be produced.

¶ 18 Carlson forwarded a copy of the trial court’s order to his supervisor at Baxter. On

October 6, 2015, Sarah Padgitt, senior litigation counsel at Baxter, wrote Carlson to tell him that

Baxter’s corporate information policies prevented the sharing of Baxter computers and any

restricted information on them with persons outside of Baxter. The attorneys for both parties

were copied on the letter.

¶ 19 Carlson filed a “motion to advise” the trial court that he would not produce his computers

for inspection and sought an order holding him in “friendly” contempt so that he could appeal the

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trial court’s ruling. On October 21, 2015, at the presentation of that motion, Carlson also orally

sought leave to file an affidavit by Padgitt, which Carlson’s attorney said he had received only

the day before. In the affidavit, Padgitt stated that Carlson neither owned nor leased his

computer from Baxter, which owned both the computer and its contents. Padgitt stated that

Baxter’s computer contained personally identifiable information of Baxter customers and other

information restricted under Baxter’s global information classification and trade secret policy.

Padgitt further averred that, if Carlson were to deliver his work computer (and his password,

which would be necessary to access the contents of the computer) to the defendants’ expert for

inspection and copying, he would be violating several of Baxter’s corporate policies and would

be subject to disciplinary measures including termination.

¶ 20 The defendants objected to the filing of the affidavit, saying that it was not an exhibit to

anything and should have been filed earlier. The trial court told Carlson that it would not

entertain the motion to advise, because the motion was not in a form sufficient to inform the

court regarding the terms of the order with which Carlson did not wish to comply. Further, the

trial court would not allow the filing of the affidavit standing alone. However, Carlson could

refile the motion, and he could attach whatever support the motion required, “such as affidavits.”

¶ 21 One week later, Carlson filed an amended motion to advise, explaining in greater detail

the reasons he did not wish to comply with the trial court’s order of September 23, 2015, and

attaching a copy of the order. He did not attach the Padgitt affidavit to his amended motion.

On November 17, 2015 (the court date for the amended motion to advise), Carlson filed a motion

to reconsider the trial court’s denial of leave to file the Padgitt affidavit, arguing that the oral

motion to file the affidavit had not been untimely, because he had received the affidavit from

Padgitt only the afternoon before, and attaching the previous correspondence from Padgitt to

show that the defendants had received advance notice of Baxter’s contention that the work

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computer belonged to Baxter. Carlson attached the Padgitt affidavit to the motion to

reconsider. The defendants again objected to the filing of the affidavit, saying that it should

have been attached to Carlson’s response to the motion to compel and that its inclusion now

would allow Carlson to “bolster” his position on appeal without allowing the defendants an

opportunity to respond. In separate orders, the trial court denied the motion to reconsider its

ruling denying leave to file the affidavit and found Carlson in “friendly” contempt, fining him

$500.

¶ 22 Carlson filed a timely notice of appeal, pursuant to Illinois Supreme Court Rule 304(b)(5)

(eff. Feb. 26, 2010), from the order dated September 23, 2015 (compelling the inspection of his

computers and his work laptop); the order dated October 21, 2015 (denying his oral motion for

leave to file the Padgitt affidavit); and both of the orders of November 17, 2015.

¶ 23 II. ANALYSIS

¶ 24 Although discovery orders are not final orders and thus ordinarily are not appealable, the

correctness of a discovery order may be tested through contempt proceedings where, as here, a

party is found in contempt for refusing to comply with a discovery order. Norskog v. Pfiel, 197

Ill. 2d 60, 69 (2001); see Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010) (contempt orders are

immediately appealable). In such an appeal, our review of the contempt order necessarily

involves a review of the orders on which the finding of contempt was based. Norskog, 197 Ill.

2d at 69. Unless the appeal raises a purely legal issue, we review discovery orders for abuse of

discretion. Kaull v. Kaull, 2014 IL App (2d) 130175, ¶ 22.

¶ 25 The issue at the heart of this appeal is the circumstances under which a party to a civil

suit may inspect the contents of another person’s computer through forensic imaging, seeking

metadata and other information. There appears to be a dearth of case law on this issue in

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Illinois. Accordingly, we begin with a review of the rules applicable to discovery in civil

litigation and the constitutional privacy concerns protected by those rules.

¶ 26 A. Civil Discovery

¶ 27 In Illinois, discovery in civil actions is governed by Illinois Supreme Court Rules 201

through 224. Rule 201 (Ill. S. Ct. R. 201 (eff. July 30, 2014)) sets out several of the general

principles regarding such discovery. A party may serve discovery upon another party to obtain

“full disclosure regarding any matter relevant to the subject matter involved in the pending

action, whether it relates to the claim or defense.” Ill. S. Ct. R. 201(b)(1) (eff. July 1, 2014).

However, “discovery requests that are disproportionate in terms of burden or expense should be

avoided.” Ill. S. Ct. R. 201(a) (eff. July 1, 2014). Discovery from nonparties may be sought

pursuant to Rule 204, which permits the service of subpoenas for deposition or for the production

of documents or other tangible things. Ill. S. Ct. R. 204(a) (eff. July 1, 2014).

¶ 28 Interrogatories under Rule 213 and requests to produce under Rule 214(a) must be served

in writing upon the responding party, which then has “a reasonable time” to respond or object to

each request. Ill. S. Ct. R. 213 (eff. Jan. 1, 2007); Ill. S. Ct. R. 214(a) (eff. July 1, 2014). One

ground for objecting is that “the burden or expense of producing the requested materials would

be disproportionate to the likely benefit, in light of the factors set out in Rule 201(c)(3).” Ill. S.

Ct. R. 214(c) (eff. July 1, 2014).

¶ 29 Significantly, the discovery rules envision that the responding party will search for,

identify, and produce the information specifically requested by the other party. They do not

permit the requesting party to rummage through the responding party’s files for helpful

information. Under Rules 213 and 214, a party must request specific information relevant to

the issues in the lawsuit from the other party, which then searches its own files and electronic

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storage media for responsive information and produces that information. See Ill. S. Ct. R. 213

(eff. Jan. 1, 2007); Ill. S. Ct. R. 214(a) (eff. July 1, 2014).

¶ 30 Rule 201(c) (Ill. S. Ct. R. 201(c) (eff. July 30, 2014)), which aims to prevent discovery

abuse, contains several provisions for limiting discovery. One approach is a protective order,

which may be entered “as justice requires, denying, limiting, conditioning, or regulating

discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or

oppression.” Ill. S. Ct. R. 201(c)(1) (eff. July 1, 2014). Another protection is the relatively

new “proportionality” provision, which states:

“When making an order under this Section, the court may determine whether the likely

burden or expense of the proposed discovery, including electronically stored information,

outweighs the likely benefit, taking into account the amount in controversy, the resources

of the parties, the importance of the issues in the litigation, and the importance of the

requested discovery in resolving the issues.” (Emphasis added.) Ill. S. Ct. R.

201(c)(3) (eff. July 1, 2014).

The protections of Rule 201(c) apply to discovery directed to parties and nonparties alike. See

Ill. S. Ct. R. 201(c)(1), (c)(2) (eff. July 1, 2014) (the court may act upon a motion by “any party

or witness”); Ill. S. Ct. R. 204(a)(1) (eff. July 1, 2014) (subpoenas issued to nonparties are

“subject to any limitations imposed under Rule 201(c)”). As a whole, “Rule 201 and related

rules governing specific discovery methods form a comprehensive scheme for fair and efficient

discovery with judicial oversight to protect litigants from harassment.” Kunkel v. Walton, 179

Ill. 2d 519, 531 (1997).

¶ 31 The civil discovery rules are not blind to the privacy interests of the party responding to

discovery. Although the scope of permissible discovery can be quite broad, “parties engaged in

litigation do not sacrifice all aspects of privacy or their proprietary information simply because

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of a lawsuit.” In re Mirapex Products Liability Litigation, 246 F.R.D. 668, 673 (D. Minn.

2007). We briefly review the nature of those privacy concerns and the ways in which the

discovery rules address those concerns.

¶ 32 B. Constitutional Right to Privacy and Civil Discovery

¶ 33 The fourth amendment to the United States Constitution protects “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures.” U.S. Const., amend. IV. The Illinois Constitution contains even broader

protection, providing that “[t]he people shall have the right to be secure in their persons, houses,

papers, and other possessions against unreasonable searches, seizures, invasions of privacy or

interceptions of communications by eavesdropping devices or other means.” (Emphasis

added.) Ill. Const. 1970, art. I, § 6. The Illinois Supreme Court has observed that “the Illinois

Constitution goes beyond federal constitutional guarantees by expressly recognizing a zone of

personal privacy, and *** the protection of that privacy is stated broadly and without

restrictions.” Kunkel, 179 Ill. 2d at 537 (citing In re May 1991 Will County Grand Jury, 152 Ill.

2d 381, 391 (1992)).

¶ 34 The constitutional right embodied in the privacy clause of the Illinois Constitution arose

from the desire to safeguard against the collection and exploitation of intimate personal

information. People v. Mitchell, 165 Ill. 2d 211, 220 (1995) (citing the comments of the

drafters of the privacy clause, which was added to the constitution in 1970); see also People v.

Caballes, 221 Ill. 2d 282, 330-31 (2006) (the drafters of the privacy clause intended to protect

against infringements on “the zone of personal privacy,” such as those that “reveal private

medical information” or “the contents of diaries or love letters; *** the individual’s choice of

reading materials, whether religious, political, or pornographic; *** [or] sexual orientation or

marital infidelity”); In re Will County Grand Jury, 152 Ill. 2d at 396 (privacy clause protects

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against disclosure of personal medical and financial records). In short, under the privacy

clause, “a person has a reasonable expectation that he will not be forced to submit to a close

scrutiny of his personal characteristics, unless for a valid reason.” In re Will County Grand

Jury, 152 Ill. 2d at 391-92.

¶ 35 These constitutional provisions do not forbid all invasions of privacy, but only those that

are unreasonable. U.S. Const., amend. IV (freedom from “unreasonable searches and

seizures”); Ill. Const. 1970, art. I, § 6 (freedom from “unreasonable *** invasions of privacy”).

The civil discovery rules adopt two safeguards to ensure that the discovery of private information

will be “reasonable” (and hence constitutional): relevance and proportionality.

¶ 36 1. Relevance

¶ 37 “In the context of civil discovery, reasonableness is a function of relevance.” Kunkel,

179 Ill. 2d at 538. The supreme court rules governing civil discovery advance this principle by

limiting discovery to information that is relevant to the issues in the lawsuit. See Ill. S. Ct. R.

201(b)(1) (eff. July 1, 2014) (parties may discover “any matter relevant to the subject matter [of]

the pending action”). Although relevant (discoverable) information is defined broadly to

encompass not only admissible information but also information calculated to lead to the

discovery of admissible information (In re Estate of O’Hare, 2015 IL App (2d) 140073, ¶ 14),

this definition is not intended as an invitation to invent attenuated chains of possible relevancy.

The corollary to the relevance requirement is that the compelled disclosure of highly personal

information “having no bearing on the issues in the lawsuit” is an unconstitutional invasion of

privacy. Kunkel, 179 Ill. 2d at 539; see also Firebaugh v. Traff, 353 Ill. 82, 85 (1933) (a court

order “cannot be used to procure a general investigation of a transaction not material to the

issue”). The concept of relevance provides a foundation in balancing constitutional privacy

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concerns with the need for reasonable discovery, “facilitat[ing] trial preparation while

safeguarding against improper and abusive discovery.” Kunkel, 179 Ill. 2d at 531.

¶ 38 2. Proportionality 1

¶ 39 Proportionality imposes a second limitation on what is discoverable: even if it is

relevant, information need not be produced if the benefits of producing it do not outweigh the

burdens. The legitimate privacy concerns of the responding party are one of the burdens that a

court can and should consider in conducting this balancing test.

1 There is little Illinois case law interpreting the proportionality rule, which was added

only two years ago. However, the Federal Rules of Civil Procedure include a similar

proportionality provision (Fed. R. Civ. P. 26(b)(1)), and there is a substantial body of case law

interpreting that provision. Further, the 2014 amendments to the Illinois civil discovery rules

explicitly draw upon the federal rules. See Ill. S. Ct. R. 201, Committee Comments (adopted

May 29, 2014) (Rule 201(b)(1) was amended to conform with the definition of electronically

stored information (ESI) in Rule 201(b)(4) and “complies with the Federal Rules of Civil

Procedure”; Rule 201(b)(4), the definition of ESI, “comports with the Federal Rule of Civil

Procedure 34(a)(1)(a)”; and the committee comments to Rule 201(c) cite the United States

Seventh Circuit Court of Appeals’ “Principles Relating to the Discovery of Electronically Stored

Information” as the source for the list of categories of ESI that “often *** should not be

discoverable” under the proportionality balancing test); Seventh Circuit Electronic Discovery

Committee, Principles Relating to the Discovery of Electronically Stored Information (rev. Aug.

1, 2010), http://www.discoverypilot.com/sites/default/files/Principles8_10.pdf. Accordingly,

we draw on federal case law as necessary for guidance in applying the Illinois proportionality

rule.

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¶ 40 The proportionality balancing test requires a court to consider both monetary and

nonmonetary factors in determining “whether the likely burden or expense of the proposed

discovery *** outweighs the likely benefit.” Ill. S. Ct. R. 201(c)(3) (eff. July 1, 2014). The

monetary factors expressly identified in Rule 201(c)(3) include “the expense of the proposed

discovery,” “the amount in controversy,” and “the resources of the parties.” Id. Nonmonetary

factors include “the importance of the issues in the litigation” (i.e., the societal importance of the

issues at stake) and “the importance of the requested discovery in resolving the issues.” Id.

All of these factors must be considered to the extent that they are relevant to the circumstances of

each case.

¶ 41 However, Rule 201(c) also gives trial courts the power and responsibility to limit or deny

discovery as necessary to prevent unreasonable “embarrassment” and “oppression.” Ill. S. Ct.

R. 201(c)(1) (eff. July 1, 2014). Given this overarching purpose, courts should also consider

other factors that might be present in a particular case. One such factor is the extent to which

the discovery sought represents a substantial invasion of the privacy interests of the responding

party. See Johnson v. Nyack Hospital, 169 F.R.D. 550, 562 (S.D.N.Y. 1996) (the trial court’s

power to limit discovery may be employed where the burden is not monetary expense but “lies

instead in the adverse consequences of the disclosure of sensitive, albeit unprivileged, material”);

Agnieszka A. McPeak, Social Media, Smartphones, and Proportional Privacy in Civil

Discovery, 64 U. Kan. L. Rev. 235, 236 (Nov. 2015) (“non-pecuniary burdens on privacy should

be factored into the proportionality analysis”). Another potentially relevant factor is whether

the discovery is sought from a nonparty without any direct stake in the outcome of the litigation.

See Tucker v. American International Group, Inc., 281 F.R.D. 85, 92 (D. Conn. 2012) (nonparty

status is “a significant factor in determining whether discovery is unduly burdensome” (internal

quotation marks omitted)); see also Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d

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422, 424 (Fed. Cir. 1993) (nonparty status weighs against requiring disclosure of confidential

information). Given the trial court’s obligation to conduct the balancing test so as to

“facilitate[ ] trial preparation while safeguarding against improper and abusive discovery”

(Kunkel, 179 Ill. 2d at 531), the proportionality analysis must take all of these factors into

consideration as appropriate in each case.

¶ 42 C. Electronically Stored Information

¶ 43 Recognizing the growing use of computers in every aspect of daily life, in 2014 the

Illinois Supreme Court amended its rules to explicitly provide for the discovery of ESI. Rule

201(b)(4) defines ESI to include, among other things, any “data or data compilations in any

medium from which electronically stored information can be obtained.” Ill. S. Ct. R. 201(b)(4)

(eff. July 1, 2014). This definition of ESI “comports with the Federal Rule of Civil Procedure

34(a)(1)(a) and is intended to be flexible and expansive as technology changes.” Ill. S. Ct. R.

201, Committee Comments (adopted May 29, 2014). Rule 201(b)(1), which permits the

discovery of any relevant matter, including documents and other tangible things, was amended to

note that the word “documents” includes ESI. Ill. S. Ct. R. 201(b)(1) (eff. July 1, 2014). As

we discuss in more detail below, other amendments, such as the addition of the proportionality

provision to Rule 201(c), were intended to provide additional protection against abusive requests

to discover ESI. Ill. S. Ct. R. 201, Committee Comments (adopted May 29, 2014).

¶ 44 The discovery of ESI presents some challenges that do not arise with paper documents or

other tangible items, including the risk of substantially higher production costs, the need for

technical expert involvement in production, and increased privacy concerns. “For example, ESI

is retained in exponentially greater volume than hardcopy documents, is dynamic rather than

static, and is sometimes incomprehensible when separated from its system.” Jeffrey A. Parness,

Managing Discovery of Electronically Stored Information in Illinois, 101 Ill. B.J. 316 (June

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2013). Most litigators are familiar with the effort and expense involved in reviewing

documents prior to production to ensure that privileged, confidential, and irrelevant information

is identified and protected from inadvertent production. That effort and expense can be much

higher when dealing with the volume of information that can be stored electronically. Further,

depending on the form of the discovery responses, significant metadata may be produced

alongside the responsive documents, sometimes without the realization of the responding party.

These facts, along with technical unfamiliarity on the part of many attorneys, may require the

participation of experts in electronic discovery to ensure that relevant and discoverable

information is produced, in a usable form, and that privileged, confidential, and irrelevant

information is not produced.

¶ 45 Further, examining the information stored on electronic devices can raise unique privacy

concerns. As the United States Supreme Court noted in Riley v. California, 573 U.S. ___, ___,

134 S. Ct. 2473, 2484 (2014), digital content is different from physical objects, and an attempt to

search that content must be considered differently. “Most people cannot lug around every piece

of mail they have received for the past several months, every picture they have taken, or every

book or article they have read—nor would they have any reason to attempt to do so.” Id. at

___, 134 S. Ct. at 2489. However, because of the enormous storage capacity of most

computers, the search of a computer can reveal all of these items and more—“a digital record of

nearly every aspect of their lives—from the mundane to the intimate.” Id. at ___, 134 S. Ct. at

2490. In addition, computer content can reveal individuals’ “private interests or concerns”

through their internet browsing history; information about where they travel and the people with

whom they communicate; and intimate details ranging from weight-control efforts to banking

and shopping records. Id. at ___, 134 S. Ct. at 2490. Indeed, computer programs and

networks frequently access information beyond the data stored on a single computer (id. at ___,

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134 S. Ct. at 2491), and the search of one person’s computer may provide access to the private

information of third parties without their knowledge or consent. The Supreme Court observed

that the privacy concerns raised by searches of computerized devices 2 “dwarf” those raised by

the inspection of physical items. Id. at ___, 134 S. Ct. at 2491.

¶ 46 D. Limits on the Discovery of ESI Under the Proportionality Rule

¶ 47 Although it is worded broadly to apply to all discovery requests, the proportionality

requirement of Rule 201(c)(3) specifically targets the challenges posed by the discovery of ESI.

See Ill. S. Ct. R. 201, Committee Comments (adopted May 29, 2014) (the proportionality

provision “was added to address the production of materials when benefits do not outweigh the

burden of producing them, especially in the area of electronically stored information (ESI)”

(emphasis added)).

¶ 48 The proportionality rule “requires a case-by-case analysis.” Id. However, the rules

committee has identified several categories of ESI that the proportionality balancing test “often

may indicate *** should not be discoverable,” presumably because the burden of producing such

ESI generally is high. (Emphasis added.) Id. These categories include:

“(A) ‘deleted,’ ‘slack,’ ‘fragmented,’ or ‘unallocated’ data on hard drives; (B) random

access memory (‘RAM’) or other ephemeral data; (C) on-line access data; (D) data in

metadata fields that are frequently updated automatically; (E) backup data that is

substantially duplicative of data that is more accessible elsewhere; (F) legacy data; (G)

2 Although Riley involved cell phones, the Supreme Court’s comments are equally

applicable to any modern computerized device that can store great quantities of data. Indeed,

the Court noted that smartphones are essentially “minicomputers.” Id. at ___, 134 S. Ct. at

2489.

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information whose retrieval cannot be accomplished without substantial additional

programming or without transforming it into another form before search and retrieval can

be achieved; and (H) other forms of ESI whose preservation or production requires

extraordinary affirmative measures.” Id. (citing Seventh Circuit Electronic Discovery

Committee, Principles Relating to the Discovery of Electronically Stored Information

(rev. Aug. 1, 2010), at 4, http://www.discoverypilot.com/sites/default/files/Principles8_

10.pdf (Principle 2.04(d))).

Discovery of these categories of ESI is not absolutely prohibited; such discovery may be ordered

where warranted in a particular case. Id. However, if a party intends to seek any of these

types of ESI, that intent “should be addressed at the initial case management conference.” Id.

¶ 49 In essence, the committee comments suggest that these categories of ESI are

presumptively nondiscoverable, shifting the burden to the requesting party to justify the making

of an exception based on the particular circumstances of the case. Illinois has yet to develop a

framework for analyzing such requests. However, we find helpful the analysis that Colorado’s

supreme court has developed over the last several years in cases involving requests for forensic

imaging of computers. See In re Gateway Logistics, Inc., 2013 CO 25; In re District Court,

City & County of Denver, 256 P.3d 687 (Colo. 2011); People v. Spykstra, 234 P.3d 662 (Colo.

2010); In re Cantrell, 195 P.3d 659 (Colo. 2008). Carlson urges us to adopt this analysis for all

discovery requests involving ESI or forensic imaging. We think that this argument is better

directed to our supreme court and thus we decline to formally adopt the analysis. Nevertheless,

we agree that the Colorado cases lay out an easy-to-apply approach that could be adapted for

discovery requests for information in the categories listed in the committee comments to Rule

201, as follows: once the responding party objects on the ground that the information sought

falls into one of those categories, the burden shifts to the requesting party to show that: (1) there

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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. See,

e.g., Gateway Logistics, 2013 CO 25, ¶ 15; District Court, 256 P.3d at 691-92. We believe that

this analysis is consistent with the policies embodied in the 2014 amendments and the committee

comments to Rule 201.

¶ 50 E. Forensic Imaging of Carlson’s Computers 3

¶ 51 We now turn to the central issue in this appeal: did the trial court abuse its discretion in

ordering the forensic imaging of Carlson’s computers, subject only to the limitations in the

protective order? The answer is yes, for the reasons that follow.

¶ 52 1. The Request is Contrary to Discovery Protocol

¶ 53 First, the defendants’ request to create and search a forensic image of Carlson’s

computers runs counter to the traditional protocol of discovery, in which one party requests

specific information and the other party searches its own files (and computers) to identify and

produce responsive information. See, e.g., Ill. S. Ct. R. 214 (eff. July 1, 2014) (setting out

framework of requests to produce and responses). As we have already noted, the supreme court

rules governing civil discovery contemplate that the responding party has both the right and the

obligation to conduct the search for the information responsive to a discovery request. See

supra ¶ 29. There is no provision allowing the requesting party to conduct its own search of the

responding party’s files—regardless of whether those files are physical or electronic.

¶ 54 When faced with a similar request to search another party’s computers for relevant

information, the Eleventh Circuit Court of Appeals commented that Rule 34(a) (the federal

3 For the moment, we leave aside the question of whether Baxter owns or controls

Carlson’s work computer.

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counterpart to Illinois Supreme Court Rule 214) “allows the responding party to search his

records to produce the required, relevant data. Rule 34(a) does not give the requesting party the

right to conduct the actual search.” In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir.

2003); see also Menke v. Broward County School Board, 916 So. 2d 8, 10 (Fla. Ct. App. 2005)

(“In civil litigation, we have never heard of a discovery request which would simply ask a party

litigant to produce its business or personal filing cabinets for inspection by its adversary to see if

they contain any information useful to the litigation.”).

¶ 55 It is possible that such an inversion of traditional discovery protocol might be appropriate

in rare circumstances. However, foreign case law has identified only two circumstances in

which a search of another party’s computer is appropriate: where the computer itself is directly

involved in the cause of action, or where there is evidence of substantial prior discovery

violations by the responding party. Examples of the first include Genworth Financial Wealth

Management, Inc. v. McMullan, 267 F.R.D. 443, 447 (D. Conn. 2010) (claim that defendant used

the computers at issue to disseminate plaintiff’s confidential information), and G.D. v. Monarch

Plastic Surgery, P.A., 239 F.R.D. 641, 643 (D. Kan. 2007) (claim that defendant medical practice

improperly left computer containing plaintiffs’ confidential information on the curb for disposal).

¶ 56 As to the second possible situation, when a party seeks forensic imaging on the basis of

prior noncompliance with traditional discovery, courts have required a significant history of

demonstrated noncompliance. See Ford Motor Co., 345 F.3d at 1317; A.M. Castle & Co. v.

Byrne, 123 F. Supp. 3d 895, 900-01 (S.D. Tex. 2015); Menke, 916 So. 2d at 12 (noting that, “in

the few cases we have found across the country permitting access to another party’s computer,

all have been in situations where evidence of intentional deletion of data was present,” and citing

cases); cf. Bennett v. Martin, 186 Ohio App. 3d 412, 2009-Ohio-6195, 928 N.E.2d 763 (ordering

inspection of defendant’s computers where defendant produced almost 16,000 pages of email

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strings in “seemingly random disorder,” defendant refused to comply with multiple court orders

regarding discovery, and defendant’s general counsel admitted in deposition that defendant had

withheld responsive documents). When a court weighs whether this factor is present, the

requesting party’s mere suspicion that the responding party might not have produced all

responsive information is not sufficient to justify forensic imaging. McCurdy Group, LLC v.

American Biomedical Group, Inc., 9 Fed. App’x 822, 831 (10th Cir. 2001) (general skepticism

about the completeness of production, standing alone, was not sufficient to justify the “drastic

discovery measure” of requiring the production of the entire contents of the plaintiff’s computer

drives); John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008) (same).

¶ 57 In this case, neither circumstance is present: there is no record of noncompliance with

discovery, and there is no particular nexus between Carlson’s computers and the legal claim, as

this is an ordinary personal injury case. Accordingly, there is no support for the defendants’

request to invert the traditional discovery protocol.

¶ 58 2. Relevance and Proportionality

¶ 59 Further, a careful consideration of relevance and proportionality reveals that forensic

imaging was not justified in this case. The information sought was not clearly specified and the

probative value of that information was questionable, while the burden to Carlson’s privacy

interest was significant. (These considerations would apply to any discovery request, but they

have special significance here, where the defendants specifically requested forensic imaging.)

¶ 60 The defendants sought a copy of the entire contents of all of Carlson’s computers in order

to search for: (1) time stamps showing when Carlson had used each particular computer “at work

or for work purposes”; (2) time stamps showing when Carlson had used each computer to play

“computer games”; (3) “search terms with respect to” various symptoms Carlson claims to have

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experienced as a result of the collision; and (4) any documents Carlson created “with respect to

his symptoms and/or research regarding” these search terms.

¶ 61 As an initial matter, the list of items sought by the defendants is ambiguous and lacks

crucial details about the information the defendants seek. For instance, the information sought

in the first item on the list presumably would require an examination of the laptop Carlson uses

for work, but how do the defendants propose to identify whether Carlson’s past use of the laptop

occurred while he was “at work” (on site at Baxter) or whether his use of it was “for work

purposes”? Does the phrase “search terms” in the third item mean that the defendants want to

know if Carlson performed Internet searches using those phrases, or that the defendants want to

search the copy of his computers’ hard drives for those terms? And how do the defendants

propose to identify the documents they seek in the fourth item?

¶ 62 Questions like these often lead parties seeking forensic imaging to submit affidavits from

computer experts, explaining the type of information the experts expect to find on the computers

at issue, the methods by which they will identify and recover only the information sought, and

the costs of the entire procedure. Expert involvement in formulating the parameters of the

search is often essential, both to ensure that what is sought can actually be recovered and to

provide information about the search process so that the court and the responding party can

appropriately monitor the process. As one court has noted, even a seemingly basic task like

formulating appropriate search terms “is a complicated question involving the interplay, at least,

of the sciences of computer technology, statistics and linguistics” and is “clearly beyond the ken

of a layman,” requiring the participation of an expert. United States v. O’Keefe, 537 F. Supp.

2d 14, 24 (D.D.C. 2008). In this case, the transcript of the hearing on the motion to compel

shows that the trial court was hampered by the lack of any expert testimony regarding the

proposed forensic imaging and search. The defendants’ attempt to substitute their own

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assertions on these topics could not cure the lack of such evidence. Indeed, at oral argument on

appeal, the defendants conceded that they could not answer technical questions about the

proposed search without consulting with their expert. The trial court abused its discretion in

permitting forensic imaging despite the lack of adequate definitions and parameters for the

proposed search.

¶ 63 Further, the proposed forensic imaging had little relevance to the litigation. Rule 201

requires that the information sought be relevant to the issues in the lawsuit. See Ill. S. Ct. R.

201(b)(1) (eff. July 1, 2014). The trial court apparently accepted the defendants’ argument that

information about when Carlson was working and when he was playing computer games could

be relevant to determining the extent of the damage caused by the accident. Carlson’s research

on his symptoms could also possibly be relevant, although we note that evidence of such

research may have limited probative value, as it could be motivated by either proper purposes

(researching one’s own symptoms to allay personal health concerns) or improper purposes

(discovering the symptoms one would report to support a claim of brain injury). However, as a

request for forensic imaging was involved, the court had to consider not only the relevance of the

information sought by the defendants but also the broad means by which they proposed to

discover it—forensic imaging of all of the computers’ hard drives. As noted above, the

contents of Carlson’s computers would have greater relevance if the computers themselves were

at the heart of the claims raised. However, that is not the case here, where the discovery

method chosen by the defendants has no particular relevance to the cause of action.

¶ 64 Moreover, there were ample avenues open to the defendants to discover the information

they sought without granting them the broad access to Carlson’s computers that they sought.

For instance, there is no indication that they ever sought to determine, through requests to admit

or deposition questions, whether Carlson performed Internet searches on the symptom terms they

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found suspicious, nor did they ever request that Carlson supplement his previous production of

his symptoms log. And, as the trial court itself noted, they could have subpoenaed from the

game companies the information they sought about Carlson’s online game-playing—but they did

not. Instead, the defendants appear to have abandoned traditional methods of discovery to

pursue far more intrusive methods of gaining the information they sought.

¶ 65 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. See Kunkel, 179 Ill. 2d at 538-39 (broad measure that required

the disclosure of confidential personal information, “without regard to the issues being litigated,”

was “unreasonable and unconstitutional”); People v. Lurie, 39 Ill. 2d 331, 335 (1968) (“a

subpoena *** which is unreasonably broad in its demand,” seeking irrelevant information, is

unconstitutional). The low probative value of the information being sought does not justify a

broad and intrusive method of obtaining that information that is likely to sweep in substantial

amounts of irrelevant information. A party may not “dredge an ocean of *** electronically

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stored information and records in an effort to capture a few elusive, perhaps non-existent, fish.”

Tucker, 281 F.R.D. at 95.

¶ 66 Finally, most of the information sought by the defendants here appears to fall into the

categories of ESI identified by the rules committee as presumptively not discoverable under the

proportionality balancing test. Ill. S. Ct. R. 201, Committee Comments (adopted May 29,

2014). For instance, the defendants’ request for “time stamps” for work-related tasks and

online game-playing appears to seek “data in metadata fields that are frequently updated

automatically” and “on-line access data.” Id. Likewise, the request for a history of Carlson’s

online searches regarding his reported symptoms constitutes a request for “on-line access data.”

Id. Indeed, the forensic imaging process itself might fall into this category as seeking “ ‘deleted,’

‘slack,’ ‘fragmented,’ or ‘unallocated’ data on hard drives.” Id.; see, e.g., United States v.

Triumph Capital Group, Inc., 211 F.R.D. 31, 48 (D. Conn. 2002) (“A mirror image is an exact

duplicate of the entire hard drive, and includes all the scattered clusters of the active and deleted

files and the slack and free space.”).

¶ 67 If the information sought is presumptively nondiscoverable, the defendants would have to

establish that discovery of the particular information was warranted in order to gain access to the

information. (The Gateway Logistics test may be helpful in making the determination, but as

noted above we do not formally adopt that test; a trial court may consider any factors it considers

helpful to the determination, bearing in mind the restrictive intent expressed in the committee

comments to Rule 201.) However, as the record in this case lacks any technical expert opinions

on this point, we do not reach a conclusion on this question. Instead, we focus on the larger

proportionality considerations that apply to a request for forensic imaging.

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¶ 68 The drafting committee for the 2006 amendments to Federal Rule of Civil Procedure 34

expressly identified privacy interests as a substantial concern raised by requests for forensic

imaging or other direct searches of an opposing party’s computers:

“[I]nspection or testing of *** a responding party’s electronic information system [e.g., a

computer] may raise issues of confidentiality or privacy. The addition of [provisions

for] testing and sampling to Rule 34(a) with regard to *** electronically stored

information is not meant to create a routine right of direct access to a party’s electronic

information system ***.” Fed. R. Civ. P. 34(a), Committee Comments (adopted Apr.

12, 2006).

Indeed, because “the mere imaging of the media, in and of itself, raises privacy and

confidentiality concerns” and “[d]uplication, by its very nature, increases the risk of improper

exposure, whether purposeful or inadvertent” (John B., 531 F.3d at 457), even the entry of a

carefully drafted protective order might not be enough to overcome the privacy concerns arising

in a particular case. “Thus courts are very cautious about ordering mirror imaging of

computers, especially where the request is overly broad and where the connection between the

party’s claims and the computer is vague and unproven.” A.M. Castle, 123 F. Supp. 3d at 900.

For all of these reasons, compelled forensic imaging should be a last resort. See 10 Jeffrey S.

Kinsler & Jay E. Grenig, Illinois Practice § 23.72 (2d rev. ed. 2016) (“A very high threshold will

have to be cleared in order to conduct such discovery.”). Further, in making such a

determination, a court must consider the balancing test of the proportionality rule, considering

the appropriate monetary and nonmonetary factors present in the case before it to determine

whether the burdens resulting from forensic imaging outweigh the likely benefit.

¶ 69 Here, the trial court did not conduct the balancing test required by the proportionality

rule. This failure to apply the correct legal analysis was an abuse of discretion. Koon v.

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United States, 518 U.S. 81, 100 (1996) (a trial court “by definition abuses its discretion when it

makes an error of law”). Accordingly, the trial court’s order compelling the forensic imaging

of Carlson’s computers cannot stand.

¶ 70 Because the trial court did not apply the correct legal analysis in deciding whether to

order forensic imaging of Carlson’s computers, we must remand to allow it to reconsider its

decision under the correct standard. Before concluding our work, however, we address two

other issues raised by Carlson on appeal: whether he must produce the computer he uses for his

work for Baxter, and whether he may file an affidavit relevant to this point.

¶ 71 F. Carlson’s Work Computer and the Padgitt Affidavit

¶ 72 Under Illinois Supreme Court Rule 214(a) (eff. July 1, 2014) a party may obtain the

production of documents or other tangible things, including ESI, only from another party. If the

responding party does not have the requested item in his “possession or control,” he must notify

the requesting party of this fact, providing any information he has about the item’s ownership or

whereabouts. Ill. S. Ct. R. 214(c) (eff. July 1, 2014). When a party seeks the production of an

item from a nonparty, it must issue a subpoena to that party. Ill. S. Ct. R. 204(a)(4) (eff. July 1,

2014); cf. Redmond v. Central Community Hospital, 65 Ill. App. 3d 669, 674 (1978) (“it is

obvious that the [discovery] rules were intended to provide *** the means to discover relevant

matter from other parties by motion or upon written request and, from third persons, through the

use of subpoenas”).

¶ 73 In this case, Carlson has asserted that he cannot produce the laptop provided to him by

Baxter, because it does not belong to him. All of the evidence in the record thus far supports

this assertion. Even apart from the Padgitt affidavit—which was filed as an exhibit to Carlson’s

motion to reconsider and was never ordered stricken, and thus is contained within the record on

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appeal although it was not formally received into the record—Carlson testified to this at his

deposition.

¶ 74 The defendants have not argued that Carlson’s actions in occasionally taking the laptop

home constitute “possession or control” of it. Even if they had raised this argument, the

occasional past possession of an item does not mean that a party can now be required to produce

it if it is no longer in his possession. See Wiebusch v. Taylor, 97 Ill. App. 3d 210, 214 (1981)

(where party no longer had possession of the car he had dropped off for repairs, which he did not

own, he could not be required to produce it). Further, even present possession of an item might

not constitute legal “possession or control” requiring production of the item if the party holds it

as an agent for another under a restrictive agreement. See, e.g., In re Shell E&P, Inc., 179

S.W.3d 125, 130 (Tex. Ct. App. 2005) (where an agent or employee has permissive “temporary

custody” of an item subject to a restrictive confidentiality agreement, the agent or employee

cannot be ordered to produce the item; instead, the requesting party must seek the item from the

principal or employer). Thus, the trial court abused its discretion in ordering Carlson to

produce the laptop for inspection by the defendants.

¶ 75 Carlson also contends that the trial court erred in denying him leave to file the Padgitt

affidavit (in its order of October 21, 2015, denying his oral motion for leave to file, and its order

of November 17, 2015, denying his motion for reconsideration). The defendants argue that we

cannot entertain this contention because our jurisdiction in an appeal from the order finding

Carlson in contempt does not encompass a review of the orders denying leave to file the Padgitt

affidavit. Carlson responds that the Padgitt affidavit is relevant to a consideration of whether

his noncompliance with the order for forensic imaging was justifiable, and so we may review the

trial court’s rulings regarding the affidavit. We agree with Carlson.

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¶ 76 The trial court ordered Carlson to produce for inspection not only his own computers, but

also the computer he used for work. Carlson contended that he did not own the work computer,

which was provided to him by Baxter, and he offered the affidavit as proof of his nonownership.

Accordingly, the testimony provided by the affidavit was directly relevant to the issue of whether

Carlson could be compelled to produce that computer (or sanctioned for failing to produce it).

As such, the correctness of the trial court’s order sanctioning Carlson is intertwined with the

correctness of the orders denying Carlson leave to file the affidavit, and all of these orders are

within the scope of our review. Norskog, 197 Ill. 2d at 69. For the same reason—the clear

relevance of the Padgitt affidavit to a disputed factual issue, the ownership of the work

laptop—we find that the trial court abused its discretion in denying Carlson leave to file the

affidavit. See Workforce Solutions v. Urban Services of America, Inc., 2012 IL App (1st)

111410, ¶ 41 (where an issue is disputed, the trial court must conduct an evidentiary hearing; the

dispute must be resolved through the consideration of evidence, not the arguments of counsel).

On remand, if the ownership of the work laptop remains a disputed issue, the trial court must

allow the parties to present evidence on the issue.

¶ 77 III. CONCLUSION

¶ 78 For all of these reasons, we vacate the trial court’s September 23, 2015, order compelling

Carlson to produce his computers for forensic imaging, the protective order of the same date, and

the trial court’s October 21 and November 17, 2015, orders denying leave to file the Padgitt

affidavit. Further, the record reflects that Carlson showed no disdain for the court and merely

refused to comply with its September 23, 2015, order in good faith to secure appellate

interpretation of this legal issue. We therefore vacate the contempt order dated November 17,

2015. See In re Marriage of Earlywine, 2013 IL 114779, ¶ 36.

¶ 79 Vacated and remanded.

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¶ 80 JUSTICE McLAREN, specially concurring.

¶ 81 I specially concur because I wish to expound on what should be addressed by the trial court

upon remand. The majority opinion is well reasoned as far as it goes. It touches upon the issue

of relevance in the classical sense that there may be evidence that, despite being digitized on a

computer, would still be relevant in proving or disproving injuries proximately caused by the

admitted liability of the defendants. However, the majority fails to address the lack of discourse

and evidence regarding the admissibility of and, therefore, the need for the discovery of the

metadata from the sundry computers.

¶ 82 Defendants claim that, because plaintiff operates computers, and computers have metadata

that records how the computers are operated, the metadata can somehow be correlated to establish

the existence or nonexistence of any change to plaintiff’s brain by determining how plaintiff’s

brain was operating the computers. There is virtually no evidence in the record to support this

“expert” supposition. I say “expert” because it is beyond the ken of a reasonable juror. See

generally Binge v. J. J. Borders Construction Co., 95 Ill. App. 3d 238 (1981).

¶ 83 Defendants relate that a computer expert or experts will have to be consulted to extract and

interpret the metadata. The trial court took it on faith that it could be done. Extracting the

information is one thing; interpreting it in the manner suggested is another.

¶ 84 The injuries that are contested relate to brain trauma and the effects thereof. I would

submit that computer experts do not normally have expertise in the diagnosis and prognosis of

brain damage, let alone damage allegedly caused by the impact of a rear-end collision. Thus, it

seems appropriate that a medical expert who has been certified in the areas of diagnosis and

prognosis of traumatic brain damage (rather than a computer expert) would be required to opine

within a reasonable degree of medical or scientific certainty whether plaintiff has experienced

brain damage. And if so, its nature and extent.

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¶ 85 The problem with defendants’ argument is that they do not cite any authority that suggests

or implies that the collection and interpretation of metadata relating to the operation of a computer

is an acceptable procedure for the diagnosis of the computer operator’s possible brain damage,

regardless of the type of expert involved. As stated by our supreme court:

“Under the rule of Frye, scientific evidence is admissible at trial only ‘if the

methodology or scientific principle upon which the opinion is based is “sufficiently

established to have gained general acceptance in the particular field in which it belongs.” ’

In re Commitment of Simons, 213 Ill. 2d 523, 529-30 (2004), quoting Frye, 293 F. at 1014.

Further, the Frye test is necessary only if the scientific principle, technique or test offered

by the expert to support his or her conclusion is ‘new’ or ‘novel.’ [Citation].” People v.

McKown, 236 Ill. 2d 278, 282-83 (2010).

¶ 86 I am not aware of any authority that suggests that there is a certifiable correlation between

any particular computer’s metadata and the ability to diagnose brain damage, let alone traumatic

brain damage. Therefore, I conclude that the tests and techniques that defendants have proposed

to base discovery upon are new and novel and subject to the Frye test. If there is evidence to

satisfy the Frye test, I submit that it should be presented along with any other evidence that would

validate this discovery request.

¶ 87 I am not prejudging the outcome. I am merely determining that this record presents an

instance that requires a Frye hearing. If this fails the Frye test then there is no reason for allowing

discovery for inadmissible evidence based upon an unproven, unacceptable correlation between a

computer’s metadata and the alleged brain damage of its operator.

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