A New Jersey appellate court has ruled that plaintiffs in civil suits may be required to turn over social media posts in discovery – even posts from so-called “private” accounts – if the trial judge determines they may be relevant to the claims asserted.

The decision in Davis v. Disability Rights New Jersey et al. is significant because it marks the first time a New Jersey appellate court has ruled on the scope of discovery regarding a litigant’s private social media posts.

It is a boon to businesses, employers and their defense lawyers because the appellate panel delineates the appropriate analytical framework for the discoverability of a plaintiff’s private social media posts. In the digital age, such posts can provide access to critical facts and shed light on a plaintiff’s state of mind, opinions and activities that can be used to establish or strengthen a company’s defenses.

In the ruling, the Superior Court of New Jersey Appellate Division rejected the plaintiff’s argument that private social media posts should have the same privacy protections as personal financial records and that courts should therefore apply a heightened good cause test when deciding whether they are discoverable.

“Persons who choose to post social media messages and photos necessarily assume the risk that intended recipients will share the information with others,” Judge Thomas W. Sumners Jr. wrote for the three-judge panel.

Financial and tax records are different, Judge Sumners noted, because they limit access to a financial institution or governmental tax authority, which cannot legally disclose the information without a person's consent or court order.

Social media, even when labeled private, has no such constraints, the judge said. “A member of a private social media group may have a moral obligation not to share posted content, but the content does not have the contractual and lawful protections afforded to personal financial and tax records” Sumners wrote.

Relevance to Plaintiff’s Claims

The appellate panel substantially upheld a ruling by the trial judge that said plaintiff Nancy Davis’s private social media posts were subject to discovery because they may be relevant to her claim of emotional distress.

Davis alleges in her suit that she was terminated from a position as a staff attorney with Disability Rights New Jersey because she needed disability accommodations resulting from lupus and her cancer diagnosis. She claims to have suffered significant emotional distress, which led to physical manifestations and symptoms.

In discovery, defense lawyers asked Davis to produce copies of her private social media posts, noting in their motion to compel that they were seeking content “concerning any emotion, sentiment, or feeling … as well as events that could reasonably be expected to evoke an emotion, sentiment, or feeling.”

The trial court granted the motion to compel, but limited the production in several ways. Davis was required to produce private posts only from the month she was terminated going forward, and only the posts that 1) referred to disability rights or the allegations in the lawsuit; 2) that expressed any emotion; 3) referred to vacations, trips, parties, or celebrations; 4) involved illness or concern about illness; 5) plaintiff’s work; and 6) all pictures of plaintiff.

On appeal, Davis argued that the trial court’s order violates both New Jersey’s Social Media Privacy Law and the federal Stored Communications Act, which prohibit disclosure of private posts absent a compelling need for the information.

The Appellate Division rejected that argument, finding that both statutes were meant to protect an individual’s private social media posts only from unauthorized access by others, including their employers. Neither law contains any such bar to disclosure in civil discovery.

Heightened Standard Rejected

Due to the significance of the legal issues on appeal, the plaintiff’s position drew the support of two friend-of-the-court briefs. The New Jersey Association for Justice argued that allowing the discovery of private social media content would cause discrimination plaintiffs to think twice before bringing suits, and that the trial judge’s order would encourage future defendants to contact other individuals who have access to the plaintiff’s private posts to obtain discovery from them, too.

The National Employment Lawyers Association of New Jersey argued in its brief that a plaintiff has privacy interests in private social media posts that deserves a heightened standard for the discoverability similar to the standard applied to a party’s income tax returns. NELA also argued that social media posts are not an accurate reflection of an individual’s true emotional state.

The Appellate Division rejected the arguments in both amicus briefs.

Notably, the court said that no heightened standard is justified because the recipient of a private social media post is not bound by a confidentiality requirement and that posts therefore do not have the contractual and lawful protections afforded to financial and tax documents.

The court also rejected several remaining arguments. It disavowed the notion that social media posts are not an accurate reflection of one’s emotional state, and that the ruling would have a chilling effect on future discrimination claims.

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