Discovery of Social Media Permitted Under Protective Protocol in NJ

 

In a case where plaintiff asserted severe emotional distress, a New Jersey appellate court wrote that “there is no New Jersey case law detailing the scope of discovery regarding a litigant’s private social media posts.”   Patrick Dorrian, New Jersey Lawyer Suing for Job Bias Must Fork Over Social Media (bloomberglaw.com)(Mar. 17, 2023).

In Davis v. Disability Rights New Jersey, __ A.3d __, 2023 WL 2530350, at *1 (N.J. Super. Ct. App. Div. Mar. 16, 2023), the court granted leave to challenge two discovery orders.  One involved social media and the other cell phone discovery.  Plaintiff had been terminated as a senior staff attorney and sued her former employer and others. The court wrote:

Plaintiff claimed “defendants have caused [her] to suffer personal hardships, including economic loss, physical and emotional distress, anxiety, pain and suffering, humiliation, [and] career, family and social disruption[.]” In response to defendants’ interrogatory questions, plaintiff asserted she suffers “ongoing” emotional distress due to defendants’ discrimination which has led to physical manifestations, including “terrible migraines, insomnia, worsening of her diabetes, [and] worsening blood pressure.”

The appellate court ordered that plaintiff submit redacted social media and cell phone records to the defendant and also provide unredacted documents, with a privilege log, to the court.  Id. at *1.

SOCIAL MEDIA POSTS

Plaintiff “argues she has a legal protected privacy interest in her private social media posts, which cannot be subjected to civil discovery without demonstrating a compelling need.”  In response, defendants “ do not dispute plaintiff’s claim that she has a privacy interest in her private social media posts. Rather, they argue the trial judge must apply a balancing test –– as he did –– to determine the scope of discovery regarding the posts.”

The appellate court wrote:

We agree plaintiff has a privacy interest in her private social media posts. That said, there is no merit to plaintiff’s assertion that her private social media posts are off limits from defendants’ discovery requests based upon her LAD[1] emotional distress claims…. As noted, our court rules permit discovery of all relevant, non-privileged information. R. 4:10-2(a). The rules do not extend a privilege to private social media account information. There are many types of privacy interests that must yield to discovery if the information sought is relevant….

Holding that social media was discoverable, the court remanded “ for the judge to put in place an in-camera review process to ensure plaintiff has recourse to allow the judge to assess posts that she believes are not discoverable.”  It wrote:

Discovery is limited to posts concerning comments or images depicting plaintiff’s emotions, celebrations, vacations, employment, and health. Such limitations bar disclosure of non-relevant posts that have no bearing on plaintiff’s action, e.g., comments concerning the welfare of members of her private groups. Defendants do not have unabated access to plaintiff’s private social networking history simply because she pursues a claim for emotional distress damages. [emphasis added].

It added:

The order is limited to private posts made during a three-year timeframe and permits plaintiff to review the posts to determine which ones are responsive to the order without requiring her to provide unfettered access to her accounts. [emphasis added]

It rejected an argument of undue burden:

We appreciate plaintiff’s counsel’s contention at oral argument that plaintiff made daily private social media posts, thereby making the collection of her posts arduous. However, plaintiff’s avid use of social media should not be a bar to defendants’ legitimate discovery request given that her posts may be a window into her emotional state, which is in dispute.

For District of Maryland guidance, see District of Maryland Applies Narrower Scope of Discovery of Social Media in “Garden Variety” Emotional Distress Cases.

CELL PHONE RECORDS

As to cell phone records, plaintiff used her own cell phone for work from home, a so-called “BYOD” arrangement.

The [trial court’s] order required plaintiff: (1) to produce a redacted copy of her personal cell phone records indicating work-related calls and texts made and received during her normal workday from January 1, 2018 to January 31, 2020; and (2) to submit to the court a copy of the redacted records provided to defendants, as well as a [privilege log] of an unredacted copy of the records showing all calls and texts made and received during that period.

The appellate court wrote that “the cell phone records order allows plaintiff to receive the records first and then redact all calls and texts transpiring outside of her work hours and for non-work purposes.   Thus, the order limits discovery to protect plaintiff’s privacy interests.”  It wrote that “ records of plaintiff’s work-related phone calls are relevant to defendants’ claim that she was terminated because she was not performing her job duties by maintaining phone contact with her clients.”  Additionally:

The order valued plaintiff’s privacy rights by allowing her to redact the records of personal calls and texts made and received during workdays and non-workdays. Moreover, the order dictates that plaintiff provide a [privilege log] to justify her claim that certain redacted calls should not be disclosed to defendants. [emphasis added].

A similar approach was ordered in Maryland as to non-party cell phones.  Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones.

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[1] “LAD” is the New Jersey Law Against Discrimination.