Post Authored By: Ava Caffarini
In many cases, the request or production of electronically stored information (“ESI”) during the discovery phase of litigation may not seem like a daunting task. Indeed, ESI discovery is unremarkable in most lawsuits. The producing party simply searches its computers and produces what it finds. There is no departure from the discovery scheme created by Illinois Supreme Court Rules 213 and 214. Carlson v. Jerousek, 2016 IL App (2d) 151248, ¶ 29 (“[A] party must request specific information relevant to the issues in the lawsuit from the other party, which then searches its own files and electronic storage media for responsive information and produces that information.”).
However, the realm of discoverable ESI in Illinois courts can, where appropriate, extend beyond traditional documents and communications. Illinois Supreme Court Rule 201 broadly defines ESI as “any writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations in any medium from which electronically stored information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Ill. Sup. Ct. R. 201.
This broad definition also makes metadata—i.e., electronic information or data that is associated with and describes the types of ESI with which we are more familiar, like emails—discoverable. Metadata is significant because it can provide additional information about virtually all of the files found on a computer, including when a file was created or accessed, and by whom. This information is often automatically created and updated by the computer’s software. Metadata is not typically visible on the face of an electronic document, but it can be accessed and produced during the ESI discovery process.
The breadth of the information available raises two issues: (1) whether the scope of discovery sought is proportional to the needs of the case; and 2) whether discovery sought may invade the privacy of the producing party. If either of these considerations is implicated, actions may be taken by the producing party to limit the ESI it is required to produce.
- Proportionality Requirement
The Illinois Supreme Court Rules do attempt to limit the information that can be sought during discovery. Kunkel v. Walton, 179 Ill. 2d 519, 531 (1997) (“Rule 201 and related rules governing specific discovery methods form a comprehensive scheme for fair and efficient discovery with judicial oversight to protect litigants from harassment.”). Illinois courts look to the proportionality of the information sought to determine whether discovery is permissible. Carlson, 2016 IL App (2d) 151248 at ¶ 35.
Specifically, Illinois Supreme Court Rule 201(c)(1) allows the court to enter a protective order “as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” Ill. Sup. Ct. R. 201(c)(1). Likewise, Rule 201(c)(3) allows the court to consider the proportionality of any discovery sought:
“When making an order under this Section, the court may determine whether the likely burden or expense of the proposed discovery, including electronically stored information, outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.” Ill. Sup. Ct. R. 201(c)(3).
The Committee Notes for Rule 201 further explain the proportionality analysis, and even set forth categories of ESI that are presumptively not discoverable, especially if the requesting party does not demand such ESI early in the litigation. Carlson, 2016 IL App (2d) 151248 at ¶¶ 48-49.
The proportionality requirement renders the vast majority of cases inappropriate for intensive ESI discovery because the value of the case is simply too low to justify the voluminous discovery sought. Even in high value cases, however, parties a court may consider the proportionality requirement and entry of a protective order which decreases the burden and costs of ESI discovery by, inter alia, limiting the categories of ESI which the parties may seek in discovery.
2. Privacy Issues
The nature of discoverable ESI (especially metadata) also requires the parties and the court to balance a party’s interest in discovering certain types of ESI versus the extent a producing party might experience an invasion of privacy if forced to produce those types of ESI. For example, the United States Supreme Court has recognized the privacy issues which are inherent when a party requests ESI associated with a person’s cell phone as follows:
“Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant … rather than a container the size of the cigarette package…
But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones.” Riley v. California, 573 U.S. 373, 393–94 (2014).
Likewise, Illinois Courts have recognized that the constitutional right to privacy from unreasonable searches and seizures is implicated during discovery in civil lawsuits and have rightfully expressed concerns that because of the “enormous storage capacity of most computers,” the search of a computer can reveal a digital record of nearly every aspect of [people’s] lives—from the mundane to the intimate.” Carlson, 2016 IL App (2d) 151248 at ¶¶ 33-35, 45 (internal citation omitted). As such, a “corollary to the relevance requirement is that the compelled disclosure of highly personal information ‘having no bearing on the issues in the lawsuit’ is an unconstitutional invasion of privacy.” Id. at ¶ 37 (quoting Kunkel v. Walton, 179 Ill. 2d 519, 539 (1997)).
Thus, in appropriate cases, a court can and should limit ESI discovery where its importance to the litigation is outweighed by the privacy concerns of the producing party. However, a court is not likely to take such action unless it is prompted by the producing party’s request for entry of protective order under these circumstances.
The scope of ESI will not likely become an issue in the majority of Illinois state court cases. It is exceedingly unlikely, for example, for extensive ESI discovery to be requested by either party in the average personal injury or eviction case. However, in some cases—e.g., in certain high-value commercial litigation, legal malpractice cases—requests for extensive ESI discovery can be quite common. In such circumstances, opposing parties can negotiate early in the case to reach an agreement as to the scope of the ESI the parties will seek. If no agreement can be reached without court intervention, careful action can ensure that the court has every opportunity to limit the ESI the producing party is required to produce during discovery. In requesting such a limitation, the proportionality requirement and privacy concerns discussed above are two avenues the effective litigant should consider.
About the Author:
Ava Caffarini is an associate at Johnson & Bell, Ltd., focusing her practice area on professional liability, business litigation, nursing malpractice, and insurance defense. Ava is a graduate of the John Marshall Law School and has a B.S. in Molecular and Cellular Biology from the University of Illinois at Urbana-Champaign.