A recent appellate court opinion helps lower courts determine when an e-discovery request is too broad or intrusive.

"Proportionality in e-discovery: The Illinois Appellate Court seeks to find the right fit"
By Eli Litoff, Kelly Warner, and Edward Casmere
Bench and Bar - April 2017

In 2014, the Illinois Supreme Court amended Rule 201(c)(3) to require that discovery requests for electronically stored information be proportional and that courts weigh the benefits against the burdens to keep litigants from gaming the process. But there was no reviewing court guidance about the proportionality test - not, that is, until last year's second district decision in Carlson v. Jerousek, 2016 IL App (2d) 151248.

In the April Bench and Bar newsletter, Eli Litoff, Kelly Warner, and Edward Casmere take a look at the Carlson case. Carlson was bringing a personal injury suit arising out of a car crash. "The defendants argued that they should be allowed to inspect Carlson's computers [using a wide-ranging technique called 'forensic imaging'] 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," the authors write.

Carlson argued that the request was too "wide-ranging and intrusive" for a lawsuit that wasn't even about computers 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 him to comply, but the appellate court reversed and remanded, instructing the trial court to conduct a proportionality test.

"The appellate court identified the overarching purpose of Rule 201 as preventing unreasonable 'embarrassment' and 'oppression' caused by discovery….Thus, the appellate court found the defendants' request for forensic imaging [an] unjustified [invasion of privacy] - especially in light of the proposed discovery's dubious relevance and defendants' failure to seek the discovery through less intrusive means," the authors wrote.

In a colorful turn of phrase, the court said "[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." Instead, the court opined that the search be "narrowly restricted to yield only relevant information," the authors wrote.

The authors noted that one of the most important aspects of the opinion was the directive that trial courts consider "all relevant factors, even those not expressly articulated in Rule 201, [when determining that] the burden of any proposed discovery is proportionate to the benefit."