Can your emails and social media posts be used against you in court?

online information locked upIf you have been injured and you file a lawsuit, do you maintain any right to privacy with respect to your electronically-stored personal information like emails, Facebook, and other social media? 

On December 15, 2016, the Second District Appellate Court of Illinois answered that question when it issued an important decision concerning the privacy rights of litigants.

In the case of Carleson v. Gerousek, Justice Schostick, established important rules concerning the right to access the computer information of a party to a lawsuit.  The court placed significant limitations on the ability of a party to access the personal, electronic information of a litigant. 

This means that if you file suit in the State of Illinois, you now have new protections because of this case.

In Carleson, the Defendant, Gerousek, through his attorneys, asked the trial court to allow him to obtain a digital imaging scan of the plaintiff’s computers.  Mr. Carleson had five such computers, including one owned by his employer, Baxter Pharmaceutical.  At the trial court level, the trial court granted the defendant’s request and ordered Carleson to produce his computers for imaging. Carleson refused to comply with the order and the trial court held him in contempt of court.  Carleson appealed the contempt ruling. 

In the appellate court, the Second District held that the trial court had “abused its discretion.”  The appellate court found that the defendant had no right to have requested the digital imaging and no right to generally access information on Carleson’s computers.  The court noted several important rules concerning the rights to access information in a civil case. First, the court addressed discovery before the computer age. 

Discovery is the pretrial process during which each side is required to share information with the other. 

The Court noted that in traditional discovery, before computers, one party requested information from the other side and the other side searched its files for relevant information.  In other words, prior to computers, one side did not have a right to rifle through the paper files of their opponents.  The appellate court held that the prevalence of computers should not change that method for conducting discovery. 

Whether in hard, paper files or on a computer, discovery still permits a party to request information but allows the other side to conduct its own search of its own files for that information.

Carleson did note two exceptions to that rule.  In a case where a party has repeatedly misbehaved during the discovery process, the court held that it may be proper to allow for a search of electronically stored data, whether on a cellphone, tablet, or computer.  Second, where the use of the computer is specifically at issue in the case, such a search might also be appropriate.

The Carleson case is an important one.  Parties who are injured by another’s negligence should not have to forego their constitutional right to privacy in order to pursue compensation for their injuries.  For the time being, under Carleson, those privacy rights are protected.

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