The Appellate Division issued an interesting published opinion that deals with a discovery issue, but also contains useful guidance for handling OPRA requests that involve searching employee cell phones for responsive records. The court made clear that it is up to the the employees themselves to conduct the search of their phones.

Lipsky v. NJ Assn of Health Plans dealt with a dispute over a discovery request to a State agency for records potentially contained within agency employees’ cell phones. The Appellate Division held that a party in pending litigation may not compel a non-party State agency to turn over its employees’ State-issued and personal cell phones to the party’s expert for forensic examination. The court determined that this violates civil discovery legal requirements as well as the employees’ constitutional privacy rights.

In explaining the reasons why the trial court’s order was erroneous, the court relied in part on OPRA law. It noted that under the discovery rules, the agency has no obligation to produce data from employees’ devices unless it has “possession, custody or control” over that data. Under OPRA, the court said, the agency only has such possession, custody or control over the government records that are within the employees’ phones. While these records are subject to disclosure under OPRA, the court recognized that employees’ phones typically also contain much personal, confidential information which is not a government record.

The Appellate Division emphasized that public employees have strong privacy interests in their phones’ contents, so where there’s an OPRA request (or discovery demand) for records from employees’ phones, it is improper for the agency to search the device for responsive records. Instead, to protect the privacy interests at stake, the agency must ask employees to conduct the search of their devices for responsive records.

This is the first time a court has directly addressed, in a published opinion, how an agency should handle an OPRA request that involves searching an employee’s cell phone.