IL: Civil discovery request to search personal computers was unreasonable; it was tenuous anything helpful would be found

Defendant was rear-ended in a car wreck, and he claimed various injuries, including cognitive impairment. The defense sought access to his work and personal computers in an effort to determine whether they could shed light on that. Under the Illinois right of privacy, including its state search and seizure provision, a civil discovery request for defendant to produce his computers for a hard drive imaging for a broad search like that was unreasonable. Carlson v. Jerousek, 2016 IL App (2d) 151248, 2016 Ill. App. LEXIS 856 (Dec. 15, 2016):

[*P32] B. Constitutional Right to Privacy and Civil Discovery

[*P33] 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)).

[*P34] 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 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.

[*P35] 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.

[*P36] 1. Relevance

[*P37] “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 concerns with the need for reasonable discovery, “facilitat[ing] trial preparation while safeguarding against improper and abusive discovery.” Kunkel, 179 Ill. 2d at 531.

[*P38] 2. Proportionality

[*P39] 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.

[*P40] 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.

[*P41] 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 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.

[*P42] C. Electronically Stored Information

[*P43] 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).

[*P44] 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 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.

[*P45] 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 ___, 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 devices2 “dwarf” those raised by the inspection of physical items. Id. at ___, 134 S. Ct. at 2491.

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.

[*P51] 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.

[*P52] 1. The Request is Contrary to Discovery Protocol

[*P53] 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.

[*P54] 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 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.”).

[*P55] 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).

. . .

[*P57] 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.

[*P58] 2. Relevance and Proportionality

[*P59] 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.)

This entry was posted in Computer searches. Bookmark the permalink.

Comments are closed.