Defendant May Discover Discharged Lawyer’s Social Media Posts And Cell Phone Records

The New Jersey Appellate Division affirmed discovery orders for information sought by defendant Disability Rights in an action brought by a discharged senior staff attorney

In A-0269-22, the trial court order (cell phone record order) granted in part and denied in part plaintiff’s motion to quash defendants’ subpoena to her cellular provider seeking her cell phone records. Plaintiff used her cell phone to perform her work duties while allowed to work from home. The 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 Vaughn index of an unredacted copy of the records showing all calls and texts made and received during that period. National Employment Lawyers Association/New Jersey (NELA) filed an amicus brief in support of plaintiff.

In A-0270-22, the trial court order (social media posts order) granted in part and denied in part defendants’ motion to compel plaintiff to provide copies of her private social media posts, profiles, and comments (collectively “social media posts” or “social media content”) from January 1, 2020 to August 29, 2022, depicting an emotion, attaching a picture of herself, or mentioning: Disability Rights or her lawsuit’s allegations; her vacations or celebrations; her being ill or worrying about being ill; and her work. NELA and New Jersey Association of Justice (NJAJ) filed amicus briefs in support of plaintiff.

We are unpersuaded by plaintiff’s and amici’s arguments that the trial judge abused his discretion in entering orders which abridged her privacy interests. We conclude the judge appropriately considered plaintiff’s privacy interests in her social media posts and cell phone bills and did not err in allowing defendants’ discovery of limited private social media posts and cell phone bills to defend against her claims that her termination violated the LAD, causing her emotional distress. We, however, remand for the judge to add the requirement in the social media posts order –– similar to the cell phone record order –– that plaintiff submit a redacted copy of her private social media posts to defendants and the trial court as well as an unredacted copy of the posts with a Vaughn index to the trial court.

The litigation

In January 2020, Orlowski and Catanese terminated plaintiff’s employment as a senior staff attorney with Disability Rights. Seeking redress, plaintiff filed a LAD complaint against defendants alleging she was terminated because she needed disability accommodations relating to her lupus condition and cancer diagnosis. 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.

Social media posts

The social media posts order is not overbroad or burdensome. 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. 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.

Cell phone records

Considering the same liberal discovery rules applied to the social media posts order, we likewise conclude the judge did not abuse his discretion in entering the cell phone records order. We see no fault with the judge’s assessment 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. The judge did not determine defendants’ claim would succeed at trial but that the cell phone records could lead to admissible evidence concerning plaintiff’s job performance. 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 Vaughn index to justify her claim that certain redacted calls should not be disclosed to defendants.

(Mike Frisch)