A Discrimination Claimant’s Social Media Posts Are Subject to Discovery, But Only to a Point

Like millions of Americans, you might use social media frequently to relate news about social events or personal accomplishments, or just to comment on current affairs. Although you share these posts with a wide audience, you probably never think the material could one day become evidence in court. Yet, that is quite the possibility.

In New Jersey, if you are suing your employer for discrimination or for any violation of civil rights law, you might have to turn over copies of your social media posts to the defendants’ lawyers. However, there are limits on that requirement. That is the lesson to be learned from Davis v. Disability Rights New Jersey. In a case of first impression in the state, an appellate court defined the scope of discovery regarding a civil litigant’s private social media posts and the procedure for deciding on release of that material.

Plaintiff Norma Davis, an attorney employed by a non-profit disability rights organization, alleged that she was terminated in violation of NJ Law Against Discrimination because she needed disability accommodations relating to her lupus condition and cancer diagnosis. She claimed that the termination caused her to suffer severe emotional distress, anxiety, pain and suffering, humiliation and disruption of her career, family and social life. During the discovery phase of the case, the defendants demanded that Davis produce copies of her private social media posts. She refused, arguing that none of her posts were related to the defendants or to her claims. After hearings, the trial judge ordered Davis to turn over some of her posts, such as those that expressed her emotions and those that discussed or mentioned vacations, trips, parties, celebrations, illnesses or anxieties.

Davis appealed on the ground that the judge’s order constituted an unreasonable invasion of privacy. The Superior Court Appellate Division found that posts concerning comments or images depicting Davis’s emotions, celebrations, vacations, employment and health were relevant to whether the defendant’s conduct caused her severe emotional distress. However, the court remanded the case for the judge to put in place an in-camera review process for posts that Davis argues do not fall within the ambit of what is discoverable.

Although the ruling recognizes an employer’s ability to probe into an employee’s social media posts, it also sets limits and requires a judge’s private inspection of posts before they are turned over to the defense. A skilled employment law litigator can advise you about the extent to which you may have to reveal social media posts and how to rebut or minimize negative inferences from any post that might cast your case in a negative light.

Deutsch Atkins & Kleinfeldt, P.C. in Hackensack has wide experience litigating employment discrimination cases throughout northern New Jersey. Call us at 551-245-8894 or contact us online to set up an appointment.