By: Andrea De La Cruz, Esq.

Social media has become an integral part of our daily lives. However, it has almost no positive effect on your personal injury lawsuit. Social media images, texts posts, videos, and more, are increasingly being used as evidence against the claimant in personal injury lawsuits.

In March of this year, the Appellate Division gave some clarification as to the scope of discovery when it comes to a litigant’s private social media. Davis v. Disability Rights New Jersey, 475 N.J. Super. 122 (App. Div. 2023).

In Davis, the plaintiff filed suit against the defendants for termination from her employment in violation of the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. §10:5-1, and sought compensation for emotional distress. During the discovery process, Defendants filed a motion compelling Plaintiff to provide access to her social media posts. The trial court entered an order compelling her to produce her social media posts, profiles, and comments, throughout a three-year timeframe. The trial judge agreed with defendant’s argument that, based upon the definitions of relevant and excludable evidence under N.J.R.E. 401 and 403, the private social media posts were discoverable within the scope of three years as they may be relevant to the claims made in her emotional distress claim.

On appeal, plaintiff argued that the trial court’s order violated both the New Jersey’s Social Media Privacy Law¹ and the Federal Stored Communications Act², which protect a person’s private social media posts from unauthorized access by employers and others. See McGovern v. Rutgers, 211 N.J. 94, 108, 47 A.3d 724 (2012). The Court found that neither statute implied that a person’s private social media content is not subject to civil discovery.

Instead, the Appellate Division found that Plaintiff put the matter at issue and the trial court order appropriately limited the scope of discovery to a relevant timeframe and issue in the case. The Appellate panel noted that the posts were relevant to plaintiff’s claims of severe emotional distress and the narrowed scope of the trial Court’s order  barred disclosure of non-relevant posts, thereby addressing any privacy concerns one may have.

Appellate Court Judge Thomas W. Sumners Jr. rejected Plaintiff’s comparison that private social media posts have the same privacy interest as personal financial records, which under Ullmann v. Hartford Fire Ins. Co., 87 N.J. Super. 409 (App. Div. 1965)³, face a heightened good cause test to be discoverable. Judge Sumners, Jr., held that personal financial and tax records limit access to a financial institution or governmental tax authority, which cannot legally disclose the information without a person’s consent or court order. In contrast, there is no confidentiality commitment or legal authority preventing an approved private recipient from sharing another’s private posts, either verbally or by sending a private screenshot to a non-private member.

“Persons who choose to post social media messages and photos necessarily assume the risk that intended recipients will share the information with others,” Judge Sumners Jr. wrote in his opinion.

In reaching their decision, the Appellate Division acknowledged that plaintiff had a privacy interest in her social media posts, but rejected the argument that those private social media posts were off limits from civil discovery requests.

The Appellate Division’s holding is an important reminder that the rules do not extend a privilege to private social media account information. Under the New Jersey rules of evidence, civil discovery extends to all relevant, non-privileged information. A person’s expectation and intent that her social media posts be maintained as private is not a legitimate basis for shielding those communications from discovery. Davis marks the first New Jersey case which details the scope of discovery regarding a claimant’s private social media posts.

At Epstein Ostrove, LLC, our trial lawyers stay abreast of the most recent decisions regarding this ever-expanding field.

Every picture you post or statement you make on social media can have an unintended effect on the outcome of your lawsuit. Here are some thoughts to consider while navigating social media if you have a pending personal injury case:

1. Ask for discretion from your friends and family. Explain why you may need to limit your presence on social media.
2. Do not discuss your accident, injuries, treatment, and lawsuit on your socials. Private discussions should be held between you, your doctors, and your family, if you want them to remain private.
3. Do not delete or alter your social media content after a personal injury incident. This can result in allegations of spoliation of evidence. Courts view this as an attempt to destroy potentially damaging information and may impose sanctions or penalties.

Overall, limiting your activity on social media while your lawsuit is pending may protect you against allegedly compromising evidence.

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¹ The Social Media Privacy Law, N.J.S.A 34:6B-5 to 34:6B-10, prohibits employers from requiring or requesting a current or prospective employee to provide or disclose any username or password, or in any way provide the employer access to a personal social media account.

² The Stored Communications Act, 18 U.S.C. §2701-§2713, states whoever: (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided[.]

³ Ullmann requires a demonstration of three things by a requestor of an opponent’s tax records in civil litigation: (1) the records are likely to contain information relevant to the claims or defenses in the case; (2) the requestor has a “compelling need” for the records to obtain information that cannot be obtained readily from other sources; and (3) disclosure of the records will serve a “substantial purpose.” Ullmann v. Hartford Fire Ins. Co., 87 N.J. Super. 409, 415-16, (App. Div. 1965).