A worker sued her former employer for wrongful termination in violation of the New Jersey Law Against Discrimination (NJLAD), claiming the employer’s conduct subjected her to severe emotional distress. On March 16, 2023, the New Jersey Appellate Division ruled her private social media accounts and personal cell phone records are relevant and must be turned over during discovery (pretrial exchange of evidence).
In January 2020, Norma Davis was terminated as a senior staff attorney with Disability Rights New Jersey. She claimed she was fired because she requested 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 the discrimination caused physical manifestations, including migraines, insomnia, and worsening of diabetes and blood pressure.
During discovery, Disability Rights demanded copies of Davis’s private social media accounts and subpoenaed her personal cell phone records. She asked the court to oppose the request, arguing she had a legally protected privacy interest in those records.
Trial Court’s Decision
The trial judge rejected Davis’s arguments and opined that her social media posts were relevant under the New Jersey Rules of Evidence because she claimed emotional distress. The court limited production, however, to only those posts during the relevant period that related to Disability Rights and allegations contained in the lawsuit; posts that expressed emotion; posts about 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 her 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’s Decision
The Appellate Division concluded the lower court didn’t err in compelling Davis to produce private social media posts or personal cell phone records, especially because the trial court’s orders had explicit limitations. It rejected her 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 the posts were relevant to her severe emotional distress claims, and the prescribed limitations barred disclosure of nonrelevant posts, thus refuting any privacy concerns.
The court also rejected Davis’s argument that a heighted good-cause test should be applied because privacy interests in social media posts aren’t akin to privacy interests in financial records because they aren’t 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 used a balancing test to weigh Davis’s privacy interest versus the relevancy of the records. It noted the records were subject to discovery because they were relevant to both her claim that she adequately performed her job and the employer’s claim she was terminated for not performing her job duties—i.e., maintaining contact with her clients. Norma Davis v. Disability Rights New Jersey.
The Appellate Division’s holding is an important reminder that social media and personal cell phone records aren’t automatically entitled to privacy and thus may be discoverable in litigation. Although discovery may be limited to avoid a fishing expedition, this decision is an important win for employers in defending against wrongful termination claims when former employees seek damages for emotional distress under the NJLAD.
For more information regarding this decision, please contact John C. Petrella, chair of Genova Burns LLC’s employment law and litigation practice group, at firstname.lastname@example.org or Dina M. Mastellone, partner and chair of the firm’s human resources counseling and compliance practice group, at email@example.com.