On March 16, 2023, the Appellate Division in New Jersey issued a decision in Davis v. Disability Rights New Jersey, which set forth guidelines for when a litigant’s private social media posts may be subject to discovery by the other party to the action. In Davis, the plaintiff in an employment termination case appealed after the trial court entered an order which compelled “plaintiff to provide copies of her private social media posts, profiles and comments” over a 32 month period which the court described as germane to her lawsuit. The Appellate Division found that the trial judge “appropriately considered plaintiff’s privacy interests in her social media posts . . . and did not err in allowing defendants’ discovery of limited social media posts . . . to defend against her claims that her termination violated the [Law Against Discrimination], causing her emotional distress.”

In reaching this decision, the appeals court acknowledged that plaintiff had a privacy interest in her private social media posts, but rejected her argument that those private social media posts were off limits from defendants’ discovery requests. Instead, the court focused on the New Jersey court rules which “permit discovery of all relevant, non-privileged information” (and which “do not extend a privilege to private social media account information”). The court found that plaintiff’s private social media posts were relevant to whether the defendants’ conduct caused plaintiff’s emotional distress. Moreover, the trial judge fashioned an order that was limited to specific private posts made during a specific timeframe and did not require her “to provide unfettered access to her accounts.”

Davis marks the first New Jersey case which details the scope of discovery regarding a litigant’s private social media posts.