The Superior Court of New Jersey Appellate Division has overturned a lower court’s decision, ruling that the cell phones of New Jersey Department of Health employees aren’t admissible in the Meadowlands Hospital Medical Center’s ongoing racketeering case.
By John Heinis/Hudson County View
The litigation, which also involves Columbus Hospital in Newark, dates back to a federal court filing in 2016 by Dr. Richard Lipski, the chair and one of four principal investors at the defunct MHMC, alleging that a healthcare union coordinated with insurance carriers to inflict “financial and reputational harm.”
Through this relationship, the NJ DOH, which was never party to the litigation, was allegedly encouraged by the Health Professionals and Allied Employees Union and New Jersey Association of Health Plans to conduct “frequent and unjustified” inspections at MHMC.
Specifically, Assistant Commissioner of Health Stefanie Mozgai was accused of repeatedly launching investigations at MHMC as a form of retaliation.
“The court also went beyond the terms of its oral opinion, and mandated that electronic devices be turned over to plaintiffs’ e-discovery expert for inspection,” Appellate Court Judges Michael J. Haas, Greta Gooden-Brown, and Stephane Anne Mitterhoff explained in their opinion released yesterday.
“The court issued that mandate without including any limitations on the type of searches that could be conducted, or the amount of time the Information Technology (IT) expert could possess the individuals’ electronic devices, nor any provisions for the protection of confidential or privileged information.”
After the lower court’s decision in April 2021, six months were spent on compiling the data and having it reviewed by the Complete Discovery Source (CDS) on behalf of the NJ DOH, and Axiana, on behalf of plaintiffs.
“Highly technical” disputes inevitably arose, with Axiana believing that the search and production of the phones’ data could have been more thorough.
“At some point before the October conference, the Department produced certifications from ten of its employees,” the decision also says.
“In these certifications, the employees indicated that they had conducted searches of their personal cellphones for the listed search terms ‘in accordance with the Search Instructions and Search Protocols provided by the Department’s Office of Legal and Regulatory Compliance’ (which were attached to the certifications), and they had turned over to the Department all responsive data from their text messages, personal email, and the applications referenced in the subpoena, to the extent applicable.”
Nonetheless, counsel for Lipsky argued that the information produced by the employees was insufficient since it did not account for deleted information, as well as the fact they had reason to omit information that made them look bad.
The appellate court noted that they recently reviewed a case involving a subpoena served on a non-party seeking electronic discovery out of Trenton, which determined that the demands must be closely scrutinized.
“Because New Jersey case law recognizes privacy interests with respect to State-issued devices, the trial court in this case clearly erred in failing to adequately consider and protect the strong privacy interests associated with the contents’ of individuals’ personal electronic devices, which often include an extraordinary amount of confidential and even privileged information,” the ruling states.
” … The requirement that individual Department employees produce their personal devices for forensic evaluation was unduly invasive and burdensome, and beyond what should generally be required in civil discovery, particularly of non-parties to a litigation.”