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Cell Phone Privacy in Litigation

by | Jul 5, 2023 | Employment Law |

Is My Personal Device Truly Private?

Quite often, defendants seek to gain access to employee’s personal cell phones during the discovery process in litigation.  Employers argue that they are entitled to determine if there are relevant communications on those cell phones or whether the employee has misappropriated any company information.   Now, it is quite often that a company files a counterclaim against an employee seeking relief for discrimination, harassment or retaliation.  The counterclaim states that the employee has violated some company policy and that the company has been damaged as a result of that violation.

Often, the counterclaim focuses on the employee’s access to and downloading or transmission of company data that the employer claims to be special in some way, i.e. confidential information or proprietary company trade secrets.  And it is under this guise that the employer seeks access to the employee’s private phone, computer or other electronic devices.

In the Eyes of the Law

New Jersey’s default rule is that “users are reasonably entitled to expect confidentiality in the ever-increasing detail that cell phones can reveal about their lives.”  State v. Earls, 214 N.J. 564, 588 (2013); State v. Hunt, 91 N.J. 338, 345 (1982). The Supreme Court recognizes that “the telephone caller is entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”  Hunt, 91 N.J. at 346-47.  The U.S. Supreme Court has held that “an expectation of privacy consists of a belief that uninvited people will not intrude in a particular way.”  Katz v. United States, 389 U.S. 347, 361 (1967).  Our courts focus on the use of the device, not the ownership of the phone or its location.  

 New Jersey law has also recognized a right to privacy in the numbers dialed from a cell phone, location data, billing data, duration of calls, and other information that can be revealed from a cell phone, even though the content of the call itself is not disclosed.   An employee should have an expectation of privacy as to call histories, address books, phone logs, text messages, emails, etc.  The NJ Supreme Court has further protected this right to privacy in State v. McQueen and Allen-Brewer, decided on August 10, 2021.  The NJ Supreme Court held that a stationhouse conversation between the defendants that was recorded by the police without notice that all conversations would be monitored, was not admissible against the defendants and was an improper invasion of their privacy.   

When Do and Don’t These Laws Apply?

However, these basic principles of privacy may not apply if the company has some reasonable basis to show that the employee has violated some company policy.  While the employee can certainly defend against these allegations, the employer may, in limited circumstances, be entitled to discovery of certain of the employee’s devices.  Legal privacy protections are likely to be stronger where the employer is seeking electronically stored information (ESI) from the employee’s personal devices.  These principles relating to your right to privacy will also not apply if you make the conversation public, whether by use of a speakerphone or if the other party to the conversation makes that discussion public.

How Can I Practice Personal Device Safety?

Be cautious about using personal devices for work-related communications or access to your employer’s servers or drives.  You should never access your personal emails and accounts from an employer-issued device.  Be extremely careful about forwarding company emails to your personal email address, downloading any company proprietary information or otherwise transmitting confidential and proprietary information to yourself as that is fodder for the company’s counterclaim against you.  While all of these actions can be defended, they tend to distract from the actual legal issues in the case, i.e. what you as an employee have experienced which has led to your cause of action.

For further guidance, reach out to Hamilton Law Firm today.