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.
Carlson alleged that a brain injury affected his ability to complete tasks at work. The defendants argued that metadata from Carlson’s work computer would show them how long it took Carlson to complete tasks, and metadata from Carlson’s personal computer would indicate whether he stayed up at night playing computer games, demonstrating his ability to concentrate. The defendants conceded that they did not know how to use the metadata but a “computer expert” would. Although the trial court expressed skepticism about the broad nature of the requests, it entered an order requiring forensic imaging of the plaintiff’s computers.
The plaintiff sought reconsideration based on an affidavit from his employer’s in-house counsel, stating that the employer’s computer contained restricted information that could not be shared. The trial court refused to consider the affidavit.
On appeal, the court...
