Extract from article by Brett Anders and Charles Seemann, III
An Illinois appellate court has vacated a trial court’s order compelling the forensic imaging of several personal computers used by plaintiff, applying a balancing test that takes into account both the proportionality rule and the privacy concerns implicated in the request. In Carlson v. Jerousek, 2016 IL App (2d) 151248, P4 (Ill. App. Ct. 2d Dist. 2016), defendants in a personal-injury case moved to compel discovery of “electronically retrievable information,” ultimately asking the trial court for unrestricted access to inspect plaintiff’s personal computers, including a computer leased to plaintiff by his employer.
The takeaway from this case – which surveys a number of cases from other jurisdictions – is that blanket requests for forensic imaging probably will not be approved without very specific parameters that describe the relevance of the information, the precise method for obtaining it, and the reason that the information cannot be obtained elsewhere. Litigants who wish to undertake such discovery should be prepared to articulate a significant need for the data sought, and to show that imaging is truly warranted under the circumstances of the case. Litigants opposing intrusive e-discovery should consider whether they can oppose aggressive e-discovery based on the various factors discussed in the majority opinion.