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How Much is Too Much When a Party Is Compelled to Hand Over Computer Data?

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Attorney Tom MetierThe Illinois Court of Appeals attempted to answer that question in a case that could be relevant nationwide regarding electronic data. In Carlson v. Jerousek (Ill. App. Ct. 2d Dist. 2016), a personal injury case led to the defendants requesting the plaintiff to hand over five computers for examination. The Court said: too broad.

In April of 2012, Robert Carlson’s car was rear-ended by a bus driven by James Jerousek, who worked for Olson Transportation/Midwest Motorcoach. In April of 2014, Carlson sued for personal injury, alleging that he suffered disability (including cognitive difficulties), emotional distress, disfigurement, and loss of a normal life after the wreck. The defendants, Jerousek, and the bus company conceded fault but disputed the extent of Carlson’s injuries.

The defendants requested the name, web address and user name for all blogs, online forums, and social networks that Carlson belonged to since the collision; his internet, e-mail, and cell phone providers; his internet and e-mail passwords and all login information. Carlson objected, saying the requests were overbroad. The defendants moved to examine Carlson’s computers because he performed his work almost entirely on computers and was claiming that his ability to perform his work had been damaged by the collision. The defendants wanted access to all Carlson’s computers saying the metadata would tell them how long it took him to do his computer-based work and whether he spent numerous hours on his computer playing games (which would contradict his claims). The trial court allowed forensic examination of Carlson’s computers.

Carlson presented an affidavit from his company’s in-house counsel, saying his computer had private information that could not be shared.  The trial court did not consider the affidavit. Carlson appealed.

The Court found that the trial court should have considered the employer’s affidavit because it directly addressed the issue of private information. The law has not kept up with the conflict between discoverable information and potential personal information or confidential business data.  The Court says the requesting party must show there is a compelling need for the information, the information is not available from other sources, and the requesting party is using the least intrusive means to obtain the information. Jerousek did not meet the criteria. The Court found that the defendants were not entitled to such a broad search. The case was reversed and remanded.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.

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