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If I Sue, Can My Employer Get My Cell Phone?

By Thomas McKinney

When an employee sues his or her employer, the employer sometimes will try to take the employee’s cell phone and inspect it for evidence. The recent case of Lipsky v. The NJ Association of Health Plans made it much more difficult for an employer to seize a phone while setting clear standards where such a drastic act is necessary. In Lipsky, the plaintiff alleged that the defendant was conspiring to shut down Meadowlands Hospital. This led to the plaintiff wanting a full-scale search of the personal devices of the defendant’s employees as well as the personal phones of employees of the State of New Jersey Department of Health who communicated with the defendant. While the lower court permitted such an invasive search, the Appellate Division reversed the lower court to preserve the privacy of data on cell phones and computers. 

The Lipsky Court stated that the means to discover electronic evidence on phones and computers is governed by the same standard used for paper documents for over a hundred years. As the court noted, in paper discovery, the other side has no right to search someone’s filing cabinets to get documents. The same principle applies to electronic information: the other side has no right to take someone’s phone and rummage through it. On this point, the Court was emphatic: “ordering a forensic examination of electronic devices by an opposing party is contrary to the way our civil discovery rules are intended to work.” Rather, the lawyers are required to work with their clients to diligently search for paper and electronic information and turn it over to the other side.   

The Court held that forensic examination is an “extraordinary remedy” which can be considered only after exhausting all other options upon a showing that the other side did not thoroughly search electronic devices.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.