Social Media in the E-Discovery Age – The (Potential) Duty to Preserve a Facebook Account During Litigation

In a recent March 25, 2013 decision from the U.S. District Court for the District of New Jersey, Magistrate Judge Steven C. Mannion ruled that the jury could draw an adverse inference against the plaintiff for his failure to preserve his Facebook account and the intentional destruction of evidence. 

The case, Gatto v. United Air Lines, Inc., et al., Case No. 10-cv-1090-ES-SCM (D.N.J. Mar. 25, 2013), involved a personal injury claim by the plaintiff, Frank Gatto, who was allegedly injured while unloading baggage from an aircraft owned and operated by United Airlines.  According to Gatto, the injuries that he sustained “rendered him permanently disabled” and limited his physical and social activities to the extent that he was no longer able to work.  The defendants sought discovery from Gatto, including documents relating to his social media accounts.  The defendants sought these accounts, and the Facebook account in particular, because they believed the accounts contained comments and photographs that contradicted Gatto’s allegations, including his physical and social activities, trips and vacations, and evidence of online business activities. 

Gatto provided defendants with executed authorizations for the release of information from several social networking websites, but not for his Facebook account.  The Court ordered Gatto to execute the necessary authorization, and he changed his Facebook account password and provided it to defendants’ counsel so they could access his account.  After attempts were made to access Gatto’s Facebook account in early December 2011, Gatto was notified of an attempted log-in from an unfamiliar IP address, and agreed to instead download his entire Facebook account and provide it to the defendants.  However, Gatto discovered that his Facebook account had been deactivated on December 16, 2011, and that his entire Facebook account data was permanently lost as a result of his failure to timely cure the deactivation.  After defendants requested that Gatto attempt to reactivate his account, Gatto discovered that Facebook had “automatically deleted” the account fourteen days after its deactivation.

The Court analyzed whether Gatto’s failure to preserve his Facebook account constituted spoliation of evidence.  Spoliation, which consists of the failure to preserve property for another’s use as evidence in pending litigation, can carry sanctions that include dismissal of a claim, adverse inferences, and attorneys’ fees, amongst others.  Of particular concern in Gatto was the adverse inference sanction, which allows a jury to infer that a party’s destruction of a document was done out of fear that its contents would harm him in the litigation.  Four factors must be present before an adverse inference instruction can be awarded: 1) that the evidence was in the party’s control; 2) that there was an actual suppression of the evidence; 3) that the evidence in question was relevant to the claims at issue; and 4) that it was reasonably foreseeable that the evidence would be subject to discovery.

The Court, without difficulty, found that the first, third and fourth factors were satisfied, as Gatto’s Facebook account was clearly within his control, that the pictures and posts on his Facebook page were relevant to the litigation because they would support or dispute any potential damages awarded in Gatto’s favor, and that Gatto was on notice that the defendants sought access to his Facebook account, thus imposing on Gatto a duty to preserve the account.  The only issue, then, was whether Gatto actually suppressed his Facebook account through allowing it to become deactivated and then failing to reactivate it before its deletion.  While it was disputed whether Gatto “actually suppressed” the account by allowing it to become permanently deleted, it was evident that he intentionally deactivated it and purposely failed to reactivate it within the requisite time period.  The defendants were therefore prejudiced by the lost access to evidence speaking to Gatto’s alleged damages.  As a result, the Court determined that all four factors for the finding of a spoliation inference were present, and that the jury at trial would be allowed to make an adverse inference against Gatto for failure to preserve his Facebook account.

While Gatto is a fact-specific ruling, it is clear that litigants must take caution to preserve their social media accounts, including Facebook.  Failure to maintain those accounts, where relevant, discoverable information may reside, or even worse to destroy or delete those accounts, may result in a variety of sanctions against that party, including an adverse inference at trial.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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