New Jersey Appellate Court Holds That Invasion of Privacy Claim Based Upon Surreptitious Recording is Not Conditioned Upon Existence of Recording

In Friedman v. Martinez, the New Jersey Superior Court, Appellate Division, examined a lawsuit brought by over sixty women alleging that a janitor surreptitiously recorded them through hidden equipment placed in an office building restroom. The women brought suit against numerous defendants, including the janitor, building owner, and management company. The defendants filed a motion for summary judgment, seeking to dismiss the claims of thirty-five plaintiffs who did not appear in the approximately eight hours of recordings recovered by police during their investigation. The motion was granted, and the claims of these plaintiffs were dismissed.

On appeal, the Appellate Division held that these plaintiffs could pursue invasion-of-privacy claims regardless of whether there was evidence that they were recorded. The Court noted that merely learning of an intrusion of an individual’s privacy was sufficient to cause injury even if no recordings existed. The Court also observed that conditioning such claims upon the existence of recordings would reward defendants who destroyed such recordings.

Rather than provide evidence of recordings, the Court held that it was sufficient for plaintiffs to present evidence that a recording evidence was present when she was in a secluded area where a reasonable expectation of privacy could be assumed. The Court further noted that such evidence could be established by inference. In the present case, the Court determined that any plaintiff who could present evidence that she used the restroom during the period of unauthorized surveillance was entitled to a reasonable inference that she was recorded. Such an inference was justified by evidence that the defendant janitor engaged in the unauthorized surveillance for several months, as well as the fact that numerous other plaintiffs were able to identify their images in the recordings obtained by police. The Court also noted that a plaintiff did not need to establish that she used the restroom on specific dates, but could instead establish use of the restroom by demonstrating that she worked in a part of the building close enough to the restroom to make occasional use likely.

The Court therefore reversed the trial court’s decision dismissing the claims of certain plaintiffs, and remanded the case to the trial court for further proceedings.