NJ Appellate Division Rules Former Employee’s Cell Phone Records & Private Social Media are Not So Private Afterall

On March 16, 2023, in a published decision in Norma Davis v. Disability Rights New Jersey, the New Jersey Appellate Division ruled that a former employee’s private social media accounts and personal cell phone records are relevant and discoverable to defend against a claim of wrongful termination in violation of the New Jersey Law Against Discrimination (NJLAD), where the former employee claims the employer’s conduct subjected them to severe emotional distress.

Facts

In January 2020, Norma Davis was terminated as a senior staff attorney with Disability Rights New Jersey. Davis claimed her termination was due to her requests for an accommodation based on her lupus and cancer diagnosis. In her complaint, Davis alleged her termination caused her personal, physical, and emotional distress as well as economic loss, humiliation, and career, family, and social disruption. She further alleged that the discrimination merged into physical manifestations including migraines, insomnia, worsening of diabetes and blood pressure. During discovery, Disability Rights demanded copies of Davis’ private social media accounts, and subpoenaed her personal cell phone records. Davis thereafter filed a Motion to Quash and Disability Rights moved to compel production of her private social media posts and cell phone records. Davis argued that she had a legally protected privacy interest in those records.

Trial Court Decision

The trial judge rejected Davis’ arguments and opined that her social media posts were relevant under the New Jersey Rules of Evidence since Davis claimed emotional distress. However, the Court limited production to only those posts during the relevant time period that related to Disability Rights, allegations contained in the lawsuit, posts that expressed emotion, vacations, trips, parties or celebrations, posts that mentioned work, illness or worry about illness, and pictures of Davis.

The Court also determined that while Davis had a similar privacy interest in her cell phone records, it was negated by Davis’ use of her phone for work related purposes during normal business hours. Thus, the trial judge ordered the provider to redact personal calls and texts made outside of business hours. The provider was further ordered to complete an appropriate index and privilege log.

Appellate Division Decision

The Appellate Division concluded that the lower court did not err in compelling Davis to produce private social media posts or personal cell phone records, especially since the trial court’s orders had explicit limitations. The Court rejected Davis’ argument that the private social media posts were barred from discovery under the Stored Communications Act and the Social Media Privacy Law. The Court noted that the posts were relevant to her claims of severe emotional distress and the prescribed limitations barred disclosure of non-relevant posts, thus refuting any privacy concerns. The Court also rejected Davis’ argument that a heighted good cause test be applied because privacy interests in social media posts are not akin to privacy interest as financial records since they are not subject to the same kind of confidentiality, legal authority, or other lawful protections.

Similarly, the Court refused to apply a heightened good cause test with respect to the personal cell phone records and instead utilized a balancing test to weigh Davis’ privacy interest versus the relevancy of those records. The Court noted that the records were subject to discovery because they were relevant to both her claim that she adequately performed her job, and to the employer’s claim that Davis was terminated for not performing her job duties, i.e., maintaining contact with her clients.

The Bottom Line

The Appellate Division’s holding is an important reminder that social media and personal cell phone records are not automatically entitled to privacy and thus may be discoverable in litigation. While discovery may be limited to avoid a fishing expedition, this decision is an important win for employers in defending against claims for wrongful termination when former employees seek damages for emotional distress under the NJLAD.

For more information regarding this decision, please contact John C. Petrella, Esq., lead Partner of the firm’s Employment Law & Litigation practice via email here or Dina M. Mastellone, Esq., lead Partner of the firm’s Human Resources Counseling & Compliance practice via email here, or call 973.533.0777.