Esposito Writes on Storage Wars

One person’s junk can be another’s treasure.  That’s the premise behind A&E’s hit series, Storage Wars.  It’s pretty formulaic.  Real-life junk dealers bid, essentially sight unseen, on the contents of public storage lockers.  The winning bidder might end up with worthless garbage, or with items far more valuable than the purchase price.  The fun for viewers is watching the rummaging.

The discovery phase of a lawsuit can seem much like the legal version of the TV show.  Parties propound interrogatories and document requests not knowing what they’ll receive in return.  It could be useless junk or game-changing information.

The computer age, with its electronic storage of information, has made the process all the more complex.  But a recent Illinois appellate decision has offered well-needed restraints on the discovery of computer-stored information.  Carlson v. Jerousek, 2016 IL App (2d) 151248.

Long story short, Carlson claimed cognitive injuries resulting from a vehicle accident.  Defendants sought the entire electronic contents of Carlson’s five personal computers and one employer-provided laptop.  The copying process is known as forensic imaging.  Carlson was a computer analyst, and defendants believed that the information may be relevant to establishing his post-accident cognitive skills.

The appellate court would have none of it.  At the heart of its concern were the financial and personal burdens placed on a responding party.  Unlike a successful bidder on a television show, a party seeking discovery may not rummage through an opponent’s file lockers in search of value.  Instead, it must request specific information, and the responding party will search for it. The search can be incredibly expensive.  And producing relevant documents might invade legitimate privacy interests of the responding party or even third-parties.

The court noted that the discovery rules impose the requirements of relevance and proportionality on document searches.  Though the relevance standard is broad, a requesting party may not “invent attenuated chains of possible relevancy” to get documents.  And even when documents are relevant, discovery may be denied when the burdens and expenses of responding are disproportionate to the likely benefits from discovery.  This requires an analysis of the amount in controversy, the expenses of discovery, privacy interests, the involvement of non-parties, and the available resources.

Discovery can be an expensive, time-consuming, and invasive process when only hard-paper discovery is involved.  The problems arising from electronic discovery can make hard-paper discovery seem easy.  The volume of documents in electronic storage can be staggering.  There may be mountains of metadata—embedded information describing other information—attached to electronic documents.  Trained computer experts may be needed to retrieve and sift through stored information.  Sensitive privacy interests are at heightened risk of inadvertent disclosure.

Although not adopting a solution, the court saw a way to limit the problems of electronic storage.  It suggested that certain categories of electronic information, e.g., deleted data, RAM data, metadata, back-up and legacy data, be classified as presumptively non-discoverable.  If a party objects to producing the information, a requesting party must prove (1) a compelling need for it, (2) the unavailability from other sources, and (3) the inability to obtain it by less intrusive means.

Given the limits on discovery, the court found fatal problems with defendants’ request for forensic imaging.  Contrary to law, it would allow defendants to rummage through plaintiff’s records.  Defendants offered no evidence of “substantial prior discovery violations” justifying the imaging.  Mere suspicion of problems is not enough.  Defendants had no evidence that the computer was “directly involved in the cause of action” so as to be discoverable.  Defendants’ ambiguous requests for information could only be explained through expert testimony, but defendants offered none.  The imaging had little relevance to the litigation.  There were other ways of getting the information.  The risk of privacy violations was high—a substantial concern in forensic imaging cases.  And defendants sought information that could be considered presumptively not discoverable.

In the end, the court agreed that “compelled forensic imaging should be a last resort.”

More often than not, these discovery disputes will arise in cases where defendants, particularly institutional defendants, are the responding parties.  They usually have far more documents to search and analyze, exponentially more when electronic storage and forensic imaging are involved.  The Carlson analysis can provide a useful way to win the document storage wars.