Carlson v. Jerousek

• Citation: 68 N.E.3d 520,2016 IL App (2d) 151248
• Decision Date: 15 December 2016
• Docket Number: No. 2-15-1248,2-15-1248
• Parties: Robert CARLSON, Plaintiff-Appellant, v. James JEROUSEK, Individually and as Agent and/or Employee of Olson Transportation, and Robert Olson, d/b/a Midwest Motorcoach, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2016 IL App (2d) 151248
68 N.E.3d 520

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

No. 2-15-1248

Appellate Court of Illinois, Second District.

Opinion filed December 15, 2016

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.

OPINION

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

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

68 N.E.3d 523

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 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

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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,

68 N.E.3d 525

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...