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Appellate Court Relies on Prof. Agnieszka McPeak’s Article in Ruling on Computer-Related Discovery Request

February 20, 2017

An Illinois appellate court recently relied upon Professor Agnieszka McPeak’s 2015 article, “Social Media, Smartphones, and Proportional Privacy in Civil Discovery” which she published in The University of Kansas Law Review

In its decision in Carlson v. Jerousek, the Second District Court of Appeals explored the question of whether a plaintiff could be ordered by a trial court to turn over “forensic images” or “mirror copies” of his computers to defendants in a personal injury case.  The appellate court noted the lack of case law regarding the inspection of information found on a computer through forensic imaging. 

McPeak’s article was cited by the court for its proposition that privacy interests should limit overly intrusive discovery, and that the proportionality factors in the new civil discovery rules are the mechanism by which to do so.  In the end, the court reversed the trial court’s grant of broad digital forensic discovery and held that, under the proportionality test, the discovery sought by defendants was overly broad and invaded the plaintiff's privacy.  McPeak’s article was the only law review article cited by the court.

“Given the massive amounts of personal data that now exists on computers and smartphones, privacy-based limits on civil discovery may be appropriate in some cases,” said McPeak.  “It’s exciting to see a court adopt such limits to prevent overly broad and disproportionate electronic discovery.”

A member of the Toledo Law faculty since 2014, McPeak’s scholarly interests explore the impact that new technology, such as social media, has on civil procedure, ethics, and privacy law.  She teaches Torts, Ethics, Privacy & Data Security, and Social Media Discovery.

“What makes Professor McPeak’s teaching and scholarship in this area so interesting is that she’s looking at age-old and essential legal tools, like discovery requests, but doing so with an eye towards emerging technologies that courts have only begun to address,” said Geoffrey Rapp, Associate Dean for Academic Affairs and Harold A. Anderson Professor of Law and Values.  “It’s not surprising at all that courts – just like our students – turn to her for insights in these areas,” said Rapp.


Last Updated: 2/2/18