Social Media Spoliation

Litigation + Media + Practice + Tech
March 26, 2013
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The Federal District Court for the District of New Jersey in Frank Gatto v. United Air Lines, Inc., favorably ruled on a motion for spoliation sanctions against the plaintiff for the deletion of his personal Facebook account.

The case is a personal injury matter based on a 2008 accident at the John F. Kennedy Airport. While employed for JetBlue Airways the plaintiff alleges that an aircraft owned and operated by defendant United Air Lines caused a set of fueler stairs owned and operated by defendant Allied Aviation to hit him. The plaintiff alleges permanent shoulder and back injuries and disabilities.

The defendants sought discovery of records from social networking sites via plaintiff’s accounts. Authorizations for access were given, except as to Facebook. A magistrate ordered the plaintiff to provide a Facebook authorization, and defendants were eventually able to print portions of the account.

The plaintiff received a notice that his Facebook account had been accessed from an unfamiliar IP address. Counsel for United Air Lines confirmed that the account had been accessed and that the entire contents were unsuccessfully subpoenaed from Facebook directly (which cited concern for the Federal Stored Communications Act). A day later, plaintiff deactivated or deleted his account and it was permanently lost. He gave the unfamiliar IP and a recently contentious divorce as reasons for the deactivation/deletion. Whether the account was deactivated and lost due to inactivity, or actively deleted, was disputed, but the court found it didn’t matter. Both involve “the withholding or destruction of evidence.”

The doctrine of spoliation requires that parties preserve relevant evidence that is likely to be requested in pending or reasonably foreseeable litigation. Sanctions can include dismissal or judgment, suppression, an adverse inference, fines, and attorneys’ fees and costs.

The final order was this:

Defendants’ request that an instruction be given at trial to the jury that it may draw an adverse inference against Plaintiff for failing to preserve his Facebook account and intentional destruction of evidence is GRANTED.

This would permit the jury to infer that the plaintiff prevented production of the account “out of the well-founded fear that the contents would harm him.”

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