Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events
On March 16, 2022, the New Jersey Appellate Division concluded in Davis v. Disability Rights of New Jersey that a plaintiff-employee’s privacy interests in her social medial posts and personal cell phone bills did not restrict her employer’s right to the production of these records when defending against claims that the plaintiff’s termination violated New Jersey’s Law Against Discrimination (the “NJLAD”) and caused her to suffer emotional distress. This decision is the first in New Jersey to detail the scope of discovery regarding a litigant’s private social media posts.
The Background
In Davis, the plaintiff filed a NJLAD complaint against her former employer alleging wrongful termination and emotional distress. In its discovery requests, the employer demanded that the plaintiff produce copies of all her social media content “concerning any emotion, sentiment or feeling of [p]laintiff, as well as events that could reasonably be expected to evoke an emotion, sentiment, or feeling.” The employer also sought the production of the plaintiff’s personal cell phone bills on the grounds that she had used her personal cell phone to perform work duties remotely.
The trial court concluded that the social media posts could be a “relevant indicator of [plaintiff’s] LAD emotional distress claim” and ordered the plaintiff to produce any social media posts, within a specific date range, that expressed an emotion; discussed vacations, trips, parties or celebrations; discussed illness or concern about illness; mentioned work; and included pictures of the plaintiff. The trial court further ordered the plaintiff to produce her personal cell phone records after redacting any entries occurring outside of normal business hours and/or for non-work purposes. The plaintiff appealed both orders on the basis that the trial court abused its discretion and abridged her privacy interests.
The Appellate Holding
The Appellate Division concluded that the trial court did not err in allowing the production of limited private social media posts and cell phone bills to defend against claims that the plaintiff’s termination violated the NJLAD and caused her emotional distress. The Appellate Division found that neither the Social Media Privacy Law nor the Stored Communications Act indicates that a person’s private social media content is shielded from civil discovery. According to the Court, while the plaintiff had a “right to seek damages to her emotional well-being caused by her termination,” the defendant also had the “right to pursue rational discovery…to oppose plaintiff’s allegations.” Because the order was limited to a three-year period and did not provide unfettered access to the plaintiff’s accounts, the Court held that the order was not overbroad or unreasonable because the plaintiff’s posts “may be a window to her emotional state,” which was the subject of dispute.
The Appellate Division likewise concluded that the trial court did not abuse its discretion in entering the cell phone records order, stating that the plaintiff’s work-related calls were relevant to the defendant’s claims that she was terminated for failure to perform her job duties by maintaining phone contact with her clients.
The Takeaway
This holding, while unpublished, provides legal support to employers seeking access to an employee’s social media posts or personal cell phone records when defending against claims of emotional distress. It would be prudent for employers to request this information in their discovery demands when the plaintiff’s emotional state is in dispute. If you have any questions about this holding or its application to your business, please contact any member of Lindabury’s Labor & Employment group.