Carlson v. Jerousek
2016 IL App (2d) 151248
| Ill. App. Ct. | 2016Background
- In April 2012 Carlson was injured in a bus collision; defendants admitted liability but contested damages, including alleged cognitive deficits.
- Defendants sought electronic discovery about Carlson’s computer use (emails, social media, metadata, internet searches); initial discovery requests were met with objections and limited supplementation by Carlson.
- Defendants moved to inspect/forensically image five of Carlson’s personal computers and a Baxter‑issued work laptop to obtain metadata, timestamps, search terms, and documents relating to his symptoms.
- The trial court ordered forensic imaging and entered a protective order drafted by defendants; Baxter objected that the work laptop and its contents were company property.
- Carlson refused compliance, attempted to file an affidavit from Baxter confirming ownership and confidentiality restrictions, was held in friendly contempt and fined; he appealed the discovery, protective‑order, and contempt rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court may order forensic imaging of Carlson’s computers | Carlson: imaging is overly broad, invades privacy, and departs from normal discovery duties to search one’s own files | Defendants: metadata and images are discoverable and relevant to proving extent of cognitive/functional limitations and possible gaming activity | Court: trial court abused discretion by ordering imaging without performing Rule 201(c)(3) proportionality balancing and without adequate technical parameters or expert support; imaging vacated and remanded for proper analysis |
| Standard for ESI/forensic imaging discovery | Carlson: requesting party must justify intrusion; responding party should search and produce responsive ESI | Defendants: broad ESI discovery warranted because computer use bears on damages | Held: discovery follows Rule 201 framework—relevance plus proportionality; forensic imaging is disfavored and requires a high showing (compelling need, unavailability from other sources, least intrusive means) |
| Whether Baxter work laptop must be produced by Carlson | Carlson: laptop is Baxter’s property and restricted; he cannot legally or contractually produce it | Defendants: laptop was in Carlson’s possession and should be imaged | Held: trial court abused discretion ordering production of work laptop without resolving ownership/control; if ownership disputed, subpoena to or evidence from owner required; Baxter affidavit should have been admitted for consideration |
| Whether trial court erred denying leave to file Baxter affidavit | Carlson: affidavit directly relevant to ability/obligation to produce work laptop and to contempt determination | Defendants: affidavit untimely and prejudicial | Held: denial was an abuse of discretion because affidavit was directly relevant; trial court must permit evidence and resolve ownership on remand |
Key Cases Cited
- Norskog v. Pfiel, 197 Ill. 2d 60 (Ill. 2001) (contempt from refusal to comply with discovery is immediately appealable)
- Kunkel v. Walton, 179 Ill. 2d 519 (Ill. 1997) (discovery must balance trial preparation with protection of privacy; relevance limits intrusion)
- In re Will County Grand Jury, 152 Ill. 2d 381 (Ill. 1992) (Illinois privacy clause protects against compelled close scrutiny of personal characteristics)
- Riley v. California, 134 S. Ct. 2473 (U.S. 2014) (searches of digital devices raise heightened privacy concerns because devices store extensive personal data)
- In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003) (Rule 34 permits responding party to search its records; requesting party lacks right to conduct opponent’s search)
- John B. v. Goetz, 531 F.3d 448 (6th Cir. 2008) (general suspicion of incomplete production insufficient to justify full forensic imaging)
- United States v. Triumph Capital Group, Inc., 211 F.R.D. 31 (D. Conn. 2002) (mirror imaging duplicates deleted/slack space and raises privacy concerns)
- Tucker v. American Int’l Group, Inc., 281 F.R.D. 85 (D. Conn. 2012) (nonparty status and privacy weigh against intrusive discovery)