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Carlson v. Jerousek

Court of Appeals of Illinois, Second District

December 15, 2016

ROBERT CARLSON, Plaintiff-Appellant,
JAMES JEROUSEK, Individually and as Agent and/or Employee of Olson Transportation, and ROBERT OLSON, d/b/a Midwest Motorcoach, Defendants-Appellees.

         Appeal from the Circuit Court of Lake County, No. 14-L-264; the Hon. Diane E. Winter, Judge, presiding.

         Vacated and remanded

          Michael W. Rathsack and David Vander Ploeg, of Chicago, for appellant.

          Melissa H. Dakich, James K. Horstman, and David H. Farina, of Cray, Huber, Horstman, Heil & VanAusdal, LLC, of Chicago, for appellees.

          SCHOSTOK JUSTICE delivered the judgment of the court, with opinion. Justice Jorgensen concurred in the judgment and 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 thus he could not produce it. We find that the trial court failed 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 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 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 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.

         ¶ 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 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 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 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 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 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 Illinois. Accordingly, we begin with a review of the rules applicable ...

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