Before donating or disposing of old electronics, many people will reset or clean them to ensure no personal information remains on the device, but this may not always take place when giving a phone or computer to a close family member, such as a child.  A recent Illinois Appellate Court ruling, and a possible future lower court decision based upon that ruling, should force individuals to highly consider resetting devices to eliminate personal information and communications even when giving it to a close acquaintance.  In In re Marriage of Stinauer, 2021 IL App (3d) 190692, the father gave his 9-year old child an old phone he was no longer using, and on the phone were emails containing communications between the father and his attorney. The child’s parents had divorced a year prior, but his mother discovered the emails on the child’s phone, and then petitioned the Court to overturn the ruling in her divorce case based upon what the communications stated. The lower court agreed with the father that the emails were protected by the attorney-client privilege, but the Appellate Court reversed, stating that the lower court needs to determine if the father giving the cell phone to his child was a waiver of the privilege, and therefore communications found on the device could be used by the mother. Regardless of whether ultimately the lower court determines attorney-client privilege was waived or not in the Stinauer case by the father giving his son a cell phone, this serves as a strong reminder for everyone to clean and reset their devices prior to giving up continued control of them, even if providing to someone closely related, such as a child.

https://courts.illinois.gov/Opinions/AppellateCourt/2021/3rdDistrict/3190692.pdf

 

Derek Luster

Attorney at Law