Proportionality in e-discovery: The Illinois appellate court seeks to find the right fit

Effective July 1, 2014, Illinois amended Supreme Court Rule 201 to account for discovery of electronically stored information (“ESI”). Among the amendments, section 201(c)(3) added specific language regarding “proportionality,” instructing courts to weigh the benefit of any proposed discovery against its likely burden or expense.1 In the years that followed, Illinois appellate courts did not have occasion to apply the proportionality test, leaving litigants to resort to federal precedent to define their proportionality arguments.

That landscape changed last year when the Illinois Appellate Court for the Second District decided Carlson v. Jerousek. 2016 IL App (2d) 151248. Carlson provides Illinois litigants with much-needed guidance on Rule 201’s proportionality test. Carlson was a personal injury case arising out of a vehicle collision, wherein the defendants sought to forensically image Carlson’s personal computers as well as a laptop owned by his employer. Forensic imaging is a process that must be performed by a forensic analyst and copies all active and deleted content on a computer. The defendants argued that they should be allowed to inspect Carlson’s computers because he performed his work almost entirely on computers, and had claimed that his ability to perform his work tasks had been hindered by the collision. Carlson’s supervisor testified, however, that Carlson was competent at his job. Further, during the litigation Carlson produced a “symptoms log,” which described his symptoms using sophisticated language the defendants believed may have been obtained through Internet searches. Accordingly, the defendants wished to inspect Carlson’s computer usage, including metadata and any stored record of his Internet searches since the collision.

In response, Carlson argued that there was no basis for “such a wide-ranging and intrusive discovery method.” Carlson noted that the computers were not the focal point of the case, and that the defendants could obtain discovery about the extent of his damages through other means, including written discovery, depositions, and testing by the defendants’ expert. The trial court ordered Carlson to comply with the request, and when he refused to do so, he was held in contempt. In an opinion authored by Justice Schostok, the appellate court reversed and remanded with instructions that the trial court conduct the proper proportionality balancing test required by Rule 201.

While the appellate court noted the lack of Illinois case law addressing Rule 201(c)(3)’s proportionality provision, it observed that the 2014 amendments explicitly drew upon the Federal Rules of Civil Procedure where substantial case law interpreting Rule 26(b)(1)’s proportionality provision exists. Accordingly, the court relied upon that federal case law for guidance. The appellate court identified the overarching purpose of Rule 201 as preventing unreasonable “embarrassment” and “oppression” caused by discovery. To carry out this purpose, the court reasoned that it was not limited to considering the factors expressly articulated in Rule 201(c)(3), but instead was free to consider other factors that might be present in a particular case. One such factor, as recognized by federal courts, was the invasion of the privacy interests of the responding party. Thus, the appellate court found the defendants’ request for forensic imaging unjustified – especially in light of the proposed discovery’s dubious relevance and defendants’ failure to seek the discovery through less intrusive means.2

The appellate court explained:

Forensic imaging of all of the contents of Carlson’s computers will yield an enormous amount of data that goes far beyond the issues that are relevant to this suit, potentially including personal photographs, declarations of love, bank records and other financial information, records of online purchases, confidential information about family and friends contained in communications with them, and private online activities utterly unconnected to this suit.

Analogizing forensic imaging to more traditional discovery, the court found “[a] request to search the forensic image of a computer is like asking to search the entire contents of a house merely because some items in the house might be relevant.” Because such a search was not narrowly restricted to yield only relevant information, the court held “it pose[d] a high risk of being overbroad and intrusive in a manner that violates the constitutional right to privacy.”3

The appellate court’s opinion confirms the federal court guidance of considering all relevant factors, even those not expressly articulated in Rule 201, to determine whether the burden of any proposed discovery is proportionate to the benefit.

The committee comments to Rule 201 contain categories of ESI that are presumptively not discoverable under the proportionality balancing test. Some of the discovery sought by the defendants in Carlson fell into these categories (e.g. “deleted,” “slack,” “fragmented,” or “unallocated” data on hard drives; “online access data”; and “data in metadata fields that are frequently updated automatically”). As the court noted, Illinois has not developed a framework for analyzing these requests. Plaintiff Carlson urged the court to adopt the approach developed by the Colorado Supreme Court in cases such as In re Gateway Logistics, Inc., 2013 CO 25 (April 15, 2013):

[O]nce the responding party objects on the ground that the information sought falls into one of those categories, the burden shifts to the requesting party to show that (1) there is a compelling need for the information, (2) the information is not available from other sources, and (3) the requesting party is using the least intrusive means to obtain the information.

The appellate court found Colorado’s approach easy to apply and consistent with the policies embodied in the 2014 amendments and the committee comments to Rule 201. Nonetheless, the court declined to formally adopt Colorado’s analysis, holding that such a decision is better left to the Illinois Supreme Court. Instead, the court instructed the trial court to contemplate any factors it considers helpful to the determination. 

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The authors are lawyers in the Chicago office of Riley Safer Holmes & Cancila, LLP.

1. One year later, the 2015 amendments to the Federal Rules of Civil Procedure similarly elevated the importance of proportionality. Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”).

2. Interestingly, in an opinion issued the same day as Carlson, Judge Jorge Alonso of the Northern District of Illinois also considered a plaintiff’s privacy interests in holding that the defendants’ discovery requests were not proportional to the needs of the case. Hespe v. City of Chicago, No. 13 C 7998, 2016 WL 7240754 (N.D. Ill. Dec. 15, 2016).

3. The court also held the trial court abused its discretion in ordering Carlson to produce his work laptop because there was no showing that the laptop was in Carlson’s “possession or control.” The court held that the laptop’s ownership remained a disputed issue on remand, and ordered the trial court to allow the parties to present evidence on the issue.