New Jersey Appellate Division Rules Private Social Media Accounts and Personal Cell Phone Records Discoverable in a Wrongful Termination Lawsuit

In March 2023, the New Jersey Appellate Division issued a ruling that could significantly impact the discoverability of private social media accounts and personal cell phone records in employment litigation. The case involved a former employee’s lawsuit against her former employer for wrongful termination in violation of the New Jersey Law Against Discrimination (NJLAD). The employee alleged that her employer’s conduct caused severe emotional distress, which the employer denied. This article will explore the background of the case, the discovery process, the trial court’s decision to compel the employee to produce her private social media accounts and cell phone records, and the Appellate Division’s ruling upholding that decision and its potential implications for future cases.

Norma Davis was a senior staff attorney with Disability Rights New Jersey, an organization that advocates for the rights of individuals with disabilities. Davis was terminated from her position in 2018 and subsequently filed a lawsuit alleging that she was fired because she requested an accommodation based on her lupus and cancer diagnosis. She also claimed that her dismissal constituted wrongful termination under the NJLAD and caused her physical manifestations, including migraines, insomnia, and a worsening of her diabetes and blood pressure.

Discovery process

During the discovery process, Disability Rights demanded copies of Davis’s private social media accounts and subpoenaed her personal cell phone records. Davis objected to the subpoenas and argued that her private social media accounts and cell phone records were not relevant to the case and should be protected by her right to privacy.

The trial judge disagreed and ordered Davis to produce the requested materials. The judge found that Davis’ social media posts were relevant to her emotional distress claims, and the evidence sought by Disability Rights was proportional to the needs of the case. In addition, the court imposed limitations on the disclosure of non-relevant posts and information, including those related to Davis’ medical conditions or treatment.

Appellate Division ruling

Davis appealed the trial court’s decision, and the Appellate Division reviewed the case. In its ruling, the Appellate Division upheld the lower court’s decision to compel Davis to produce her private social media accounts and cell phone records. The court found that the trial judge did not err in ruling that Davis’s social media posts were relevant to her claims of severe emotional distress, and that the discovery requests were proportional to the needs of the case.

The Appellate Division also noted that the limitations imposed by the trial court were expressly intended to protect Davis’s privacy rights. The court stated that the limited disclosure of non-relevant posts and information was sufficient to mitigate any privacy concerns and balance the competing interests of the parties.

The Appellate Division’s decision in this case is significant because it reinforces the notion that private social media accounts and personal cell phone records are not automatically entitled to privacy protection in litigation. The court’s ruling affirms that the discoverability of such material depends on their relevance to the claims and defenses in the case, and the need for proportional discovery. The decision should also serve as a reminder to litigants and their counsel to consider the potential discoverability of their clients’ social media and cell phone usage when preparing their cases.

Impact on Employers

The Appellate Division’s ruling is also important for employers defending against claims of wrongful termination and emotional distress under the NJLAD. This decision gives employers greater leverage to demand social media and cell phone records during discovery, especially when the employee alleges emotional distress resulting from the termination. The Appellate Division’s endorsement of the trial court’s limitations on the disclosure of non-relevant information may also ease concerns among plaintiffs about the scope of discovery in such cases.

The New Jersey Appellate Division’s recent ruling on the discoverability of private social media accounts and personal cell phone records in employment litigation is an important development in the law. It reinforces the idea that privacy rights are not absolute in the context of litigation and that the relevance and proportionality of the requested materials are key factors in determining whether or not they are discoverable. Moreover, the decision gives added weight to employers’ ability to demand these materials during discovery, particularly in cases involving emotional distress claims resulting from a termination. Overall, the ruling is a reminder that the law is constantly evolving, and litigants and their counsel must stay up-to-date on the latest developments to ensure their cases are adequately prepared and presented.

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