In these appeals, calendared back-to-back and consolidated to issue a single opinion, the court granted plaintiff Norma Davis leave to challenge two separate Law Division discovery orders arising from her lawsuit alleging that defendants Disability Rights New Jersey, Gwen Orlowski, and Ellen Catanese terminated her employment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50. The orders were stayed pending these appeals.
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[1] 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.
The court is unpersuaded by plaintiff's and amici's arguments that the trial judge abused his discretion in entering orders which abridged her privacy interests. The court concludes 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. The court, however, remands 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.
