Our lives are documented by our computers. All of us carry a tiny computer on us or next to us 24 hours a day that we refer to by just one of it’s functions: a phone.
What we did. Who we talked to. Where we were. It’s all there on our computers or (more likely) our phones. All this information can reveal things that are very relevant to an Illinois divorce: adultery, gambling, drug abuse, secret funds, etc. On the other hand, the contents of a phone or computer surely contains private information that is covered by some form of privacy right. So, can a spouse inspect a phone or computer during the Illinois divorce process?
The Right To Request Information In An Illinois Divorce
In any civil case in Illinois (divorces are civil cases) a party can ask for just about anything from anyone else (including people who aren’t even part of the case). This series of requests for information from the parties and others during a divorce case is called “discovery.”
“[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts.” Ill. Sup. Ct. R. 201(b)(1)
No one wants the actual computer or phone when requesting discovery in an Illinois divorce. They want the information inside the computer or phone. The data. The Illinois discovery rules recognize this need for electronic information.
“The word “documents,” as used in [the Ililnois Supreme Court Rules] includes, but is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, communications and electronically stored information as defined in Rule 201(b)(4).” Ill. Sup. Ct. R. 201(b)(1)
The Illinois Supreme Court Rules refer to information from a phone or computer as “Electronically Stored Information.”
“Electronically Stored Information. (“ESI”) shall include 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(b)(4)
At first glance, it appears that all information (even information encoded on a computer or phone) is up for grabs in the Illinois divorce discovery process.
There are a lot of limitations, however.
Objecting To Discovery Requests In An Illinois Divorce
Discovery requests can be directly to a party to the divorce “please let me search your phone” or to third-party via subpoena such as “Verizon, send me all of George Johnson’s text message data.” Discovery requests can be about anything and can be to anyone.
Discovery requests are limitless…unless they are objected to by any interested party. The objection must have some sort of basis in fact or law.
“A party served with the written request shall…serve upon the party so requesting written objections on the ground that the request is improper in whole or in part.” Ill. Sup. Ct. R. 214(c)
“[D]iscovery requests that are disproportionate in terms of burden or expense should be avoided.” Ill. Sup. Ct. R. 201(a)
“[T]he 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)
There’s not a lot of expense or burden in downloading the contents of a phone or computer. The objectional issue in regards to phones and computers is the privacy of any party whose information may be on that phone or computer.
“Although our civil discovery rules provide for a broad scope of discovery, parties engaged in litigation do not sacrifice all aspects of privacy, confidentiality, and privilege.” Custer v. Cerro Flow Products, Inc., 136 NE 3d 1108 – Ill: Appellate Court, 5th Dist. 2019
The Right To Privacy During Discovery In An Illinois Divorce
The fourth amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV.
In Illinois there is an even broader constitutional protection, in that “[t]he people shall have the right to be secure in their persons, houses, papers, and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means.” Ill. Const. 1970, art. I, § 6.
“[T]he Illinois Constitution goes beyond federal constitutional guarantees by expressly recognizing a zone of personal privacy, and that the protection of that privacy is stated broadly and without restrictions” Kunkel v. Walton, 689 NE 2d 1047 – Ill: Supreme Court 1997
So, any search of anything remotely personal will be constitutionally protected from “unreasonable…invasions of privacy” Ill. Const. 1970, art. I, § 6.. “[I]t is unreasonable invasions of privacy that are forbidden. In the context of civil discovery, reasonableness is a function of relevance.”Kunkel v. Walton, 689 NE 2d 1047 – Ill: Supreme Court 1997
This means that any invocation of one’s right to privacy must be accompanied by an explanation of what makes the request “unreasonable”
In determining the reasonableness or unreasonableness of a discovery request“[t]he civil discovery rules adopt two safeguards to ensure that the discovery of private information will be “reasonable” (and hence constitutional): relevance and proportionality.” Carlson v. Jerousek, 2016 IL App (2d) 151248
Illinois Supreme Court Rule 201(b) only allows for discovery in search of “relevant facts.” Ill. Sup. Ct. R. 201(b)
“The concept of relevance facilitates trial preparation while safeguarding against improper and abusive discovery.” Kunkel v. Walton, 689 NE 2d 1047 – Ill: Supreme Court 1997
The entire contents of a phone or a computer cannot be relevant and therefore cannot be requested in their entirety.
Proportionality is the requirement that a court must consider both monetary and nonmonetary factors in determining “whether the likely burden or expense of the proposed discovery…outweighs the likely benefit.” Ill. S. Ct. R. 201(c)(3)
While there is no monetary or time burden in downloading the contents of a computer’s hard drive or a phone’s storage, there are other burdens which must be weighed such as “the importance of the requested discovery in resolving the issues.” Ill. S. Ct. R. 201(c)(3)
To enforce proportionality of any discovery case, the court can “make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” Ill. S. Ct. R. 201(c)(1)
In sum, when objecting to discovery requests based on privacy, a party must invoke their federal and Illinois state right to privacy and use relevancy and proportionality of the of the request to show that, on the whole, the request is unreasonable.
The Special Nature Of Electronic Records During Discovery In An Illinois Divorce
Discovery was originally designed to be an exchange and or inspection of physical documents such as tax returns, bank statements, etc.. The digitization of information has meant that the amount of documents any person could have is essentially infinite.
The United States Supreme Court acknowledged this new reality. “[I]t is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.”
“Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.”Riley v. California, 573 U.S. 373 (2014)
Additionally, all cell phones have Global Positioning System capabilities which invoke further privacy concerns. “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” United States v. Jomes 615 F. 3d 544
Computers and cell phones all speak with each other now through the internet. That means that the contents of any particular computer or cell phone may contain the private details of third parties who cannot be given notice before any search.
Illinois, as of this date, does not have a rule for how to overcome the enormous burden of piercing the presumptive privacy of a computer and/or cell phone. The committee comments regarding Supreme Court Rule 201 tells us “that the following categories of [electronically stored information” should not be discoverable; (A) “deleted,” “slack,” “fragmented,” or “unallocated” data on hard drives; (B) random access memory (RAM) or other ephemeral data; (C) on-line access data; (D) data in metadata fields that are frequently updated automatically; (E) backup data that is substantially duplicative of data that is more accessible elsewhere; (F) legacy data; (G) information whose retrieval cannot be accomplished without substantial additional programming or without transforming it into another form before search and retrieval can be achieved; and (H) other forms of [electronically stored information] whose preservation or production requires extraordinary affirmative measures.” Ill. S. Ct. R. 201, Committee Comments (revised May 29, 2014)
It is hard to imagine some kind of information from a phone or a computer that is not covered by one of these categories. Virtually every application has the ability to have “online access data.” Recovering anything from a phone or computer beyond a screenshot requires “extraordinary affirmative measures”
Finally, there is zero possibility that a divorcing party’s computer and cell phone were not used for communicating with that party’s attorney. “All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure.” Ill. S. Ct. R. 201(c)(3)
Why Would Someone Want Your Phone’s Or Computer’s Data In An Illinois Divorce?
Your computer and phone have almost limitless data about your and other people in your life. They say that “the innocent have nothing to hide” but turning over every detail of your life is probably not something even Mother Theresa should do.
A GPS record of where you spend the night may indicated if you are cohabitating. Your search history may impact whether you are a “fit parent” or not. Paypal or bitcoin expenses could reveal purchases from the dark web. In a divorce, your dating habits (which are all online now) are sure to be scrutinized by your spouse.
In sum, secrets are private and that’s okay. You don’t owe your soon-to-be ex-spouse insight into your inner thoughts even if those thoughts were digitally recorded.
Furthermore, asking for a phone or computer’s data is by far the most intrusive method of finding the information that the party is seeking. Interrogatories, Requests For Admission, Notices to Produce non-electronic documents and depositions should all be employed before any inspection occurs that is as invasive as requesting cell phone or computer data.
“[There are] ample avenues open to [parties] to discover the information they sought without granting them the broad access to [another parties’] computers” Carlson v. Jerousek, 2016 IL App (2d) 151248
How To Get Information From Someone’s Phone Or Computer In An Illinois Divorce
All of these privacy rights enshrined by the United States Constitution and the Illinois Constitution are only applicable for unreasonable searches by the government or pursuant to governmental direction. An Illinois court order to turn over information for discovery is “pursuant to government direction” and, therefore, will undergo constitutional scrutiny.
Without a court order, searching someone’s computer or phone is probably not a great idea, either.
Accessing someone’s computer is illegal under Illinois law.
“A person commits computer tampering when he or she knowingly and without the authorization of a computer’s owner or in excess of the authority granted to him or her:
(1) Accesses or causes to be accessed a computer or any part thereof, a computer network, or a program or data” 720 ILCS 5/17-51(a)(1)
Additionally, accessing anything without permission that can store and transmit data (every single computer does this) is a federal crime.
It is an offense to “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility,” and by doing so “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a)
Furthermore, any such access allows the victim to sue the perpetrator in Federal Court and collect money damages. “The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.” 18 U.S.C. § 2701(b)
In an Illinois civil court, accessing someone’s computer or phone without their permission is probably a tort (something you can sue someone for) in Illinois.
The tort of “intrusion upon seclusion is defined by the second restatement of torts and ratified by the Illinois Supreme court as “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Lawlor v. N. Am. Corp., 368 Ill. Dec. 1, 11 (Ill. 2013)
You would, however, have permission to access someone’s computer or phone if the court ordered it through a discovery order. Getting that discovery order would require an extremely narrow search terms that would be particular to the device and application.
Unfortunately, there are no laws in Illinois regarding what level of specificity would be necessary to satisfy the relevancy and proportionality tests required to overcome the presumption of an unreasonable search in a civil matter. The “more specific the better” will overcome relevancy concerns but, the steps necessary to be so specific, may weigh against you as being too burdensome under the proportionality test.
It is best to exhaust all other forms of discovery before requesting access to a phone or computer. But, by the time that is done, the party may have deleted the phone or computer’s contents or allowed applications to automatically delete data as time passes.
In order to avoid destruction of data on a phone or computer, a petition for injunctive relief will need to be filed. Such a petition, can again be argued to be too burdensome under the standards suggested for electronically stored information.
On final reflection, you also own a phone and computer. Do you want your spouse going through its data? Also, the judge deciding your divorce case has a phone and computer, does he or she EVER want someone to have precedent for accessing his or her phone or computer?
Probably not on both counts.
If you need access to your spouse’s phone or computer or your spouse is asking for your phone or computer’s data, you need help. Contact my Chicago, Illinois family law firm for a free, no-obligation consultation with an experienced Chicago divorce attorney.
