Andrea Fabian-Checkai, Borkan & Scahill
Email Andrea Fabian-Checkai
From Mustang Crash to Discovery Clash: No Corporate Shield for Personal Use of Work Cellphone for Text Messages
In today’s hyper-connected world—where laptops, tablets, personal phones, and work phones generate and store vast amounts of information—it is critical for litigators to remain attentive to the interplay between forensic evidence and deposition testimony. Depositions remain one of the most powerful discovery tools, provided counsel listens carefully and follows up strategically.
In Mote v. Estate of McManus, 2025 IL App (4th) 241307, 265 N.E.3d 933, 485 Ill.Dec. 243, the defendant Matthew Stern loaned his 2018 Ford Mustang GT to Michael McManus on September 20, 2019. McManus, who was intoxicated, lost control of the Mustang, swerved across the center line, entered a ditch, struck a culvert, became airborne, cleared a fence, landed, and burst into flames—killing both himself and his passenger.
The plaintiffs, Melody Mote, Jim Mote, and Michael Silvia, sent Stern a preservation letter demanding he retain all evidence relevant to their claims. Their second amended complaint alleged negligent entrustment/wrongful death and negligent entrustment/survival arising from the passenger’s death.
In August 2021, the plaintiffs requested production of “any and all text messages and other forms of electronic communications” between Stern and McManus. 2025 IL App (4th) 241307 at ¶6. Stern’s sworn answers denied that any such communications existed.
Three months later, the plaintiffs’ counsel challenged that assertion, noting it was improbable that two close friends had exchanged no communications, and again demanded compliance. Stern’s counsel doubled down, insisting all responsive communications had already been produced.
Over six months later, Stern sat for his discovery deposition. He described McManus as a close friend he contacted nearly every other day, including at social gatherings. He acknowledged text messages existed on his cell phone and agreed not to delete them.
Two days later, Stern’s counsel produced some messages between Stern and McManus — dated September 20 and December 1, 2018, nine months before the fatal crash. That production also contained a Facebook post from McManus displaying a December 16, 2022, text exchange with Stern that had not been disclosed. When plaintiffs requested a meet-and-confer, Stern’s counsel failed to respond and told opposing counsel to file a motion to compel.
A mutual friend later testified that Stern and McManus met almost daily for three years, often drinking and using drugs, and were frequently intoxicated. The friend also testified that McManus was notorious for drinking and driving, something Stern knew or should have known.
The plaintiffs proposed a protocol for a forensic inspection of Stern’s cell phone to obtain all communications between Stern and McManus. Stern refused, maintaining that all responsive material had already been produced.
The plaintiffs moved to compel, arguing that (1) the messages were relevant to negligent entrustment, (2) the request was proportional because the burden of production was minimal, and (3) Stern’s phone was the only possible source since McManus’s phone had been destroyed. They emphasized that forensic review was the least invasive means available.
Stern later claimed his phone belonged to Stern Beverage, where he served as president, and that an in-house IT department had already searched the phone without locating responsive messages.
The trial court found Stern in contempt for failing to comply with its order compelling forensic examination and later granted the plaintiffs’ motion for sanctions, concluding Stern had not acted in good faith.
On appeal, Stern argued that the plaintiffs should have subpoenaed Stern Beverage, as the purported owner of the phone, and that forensic inspection was overly drastic and risked disclosure of privileged information.
The appellate court rejected these arguments, noting that Stern testified he had only one phone for both business and personal use, and therefore the plaintiffs were not required to issue a subpoena to Stern Beverage. The court held that Stern could not invoke technical ownership to avoid discovery obligations, particularly after he admitted to using the device for extensive personal communications.
The court cited Illinois Supreme Court Rule 201(b)(1), which allows discovery of any matter relevant to the subject of the litigation so long as it has “any tendency to make the existence of a fact in issue more or less probable.” [Emphasis omitted.] 2025 IL App (4th) 241307 at ¶51, quoting Shamrock Chicago Corp. v. Wroblewski, 2019 IL App (1st) 182354, ¶35, 162 N.E.3d 286, 443 Ill.Dec. 652. “Relevant information” includes not only admissible evidence but also material reasonably “calculated to lead to the discovery of admissible evidence.” Carlson v. Jerousek, 2016 IL App (2d) 151248, ¶37, 68 N.E.3d 520, 409 Ill.Dec. 667.
In negligent entrustment claims, liability hinges on whether the owner entrusted the vehicle to an incompetent or unfit driver and whether that incompetence was a proximate cause of the injury. Northcutt v. Chapman, 353 Ill.App.3d 970, 819 N.E.2d 1180, 289 Ill.Dec. 380 (4th Dist. 2004). The plaintiffs alleged Stern knew the Mustang had been modified into a high-performance vehicle and that McManus was a reckless, intoxicated driver. Texts about visiting bars and testimony from a mutual friend regarding near-daily drinking bolstered these claims.
Ultimately, the appellate court affirmed sanctions, holding that Stern’s refusal to comply — even after the trial court provided a protective order to safeguard privileged information and offered in camera inspection — warranted monetary penalties and attorneys’ fees.
Key Takeaways for Litigators
- Requests for production must be monitored and enforced. Do not accept conclusory responses, challenge improbable denials and follow up with depositions or motions to compel.
- Deposition testimony often opens discovery doors. Seemingly small admissions (e.g., acknowledging text messages exist) can justify broader requests and forensic inspections.
- Relevance is broader than admissibility. Illinois courts continue to affirm that discovery encompasses not just admissible evidence but also material that may lead to admissible evidence.
- Draft precise preservation letters. Anticipate mobile devices, social media, and cloud storage.
- Corporate ownership does not shield personal use. A litigant cannot avoid discovery obligations by hiding behind technicalities of ownership when the device is used for personal communications central to the claims.
- Discovery misconduct carries consequences. Courts are willing to impose contempt findings, monetary penalties, and attorneys’ fees when parties act in bad faith or obstruct forensic access.
For more information about civil litigation, see CIVIL APPEALS: STATE AND FEDERAL — 2025 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.