EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, October 14, 2013

Facebook Status: Spoliated -- New Jersey Court Finds Deactivation of Facebook Account Was Spoliation of Evidence

A few days ago, my colleague, Marcia Yablon-Zug, asked me a question to which I didn't know the answer: What happens if a litigant deactivates his Facebook account because of some combination of items on it that could be embarrassing, both litigation-wise and personally. Of course, a good deal likely depends on the exact nature of the lawsuit and the precise nature of what was on the litigant's Facebook page. But, as the recent opinion of the United States District Court for the District of New Jersey in Gatto v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J. 2013), makes clear, the litigant could be guilty of spoliation of evidence, allowing for the giving of an adverse inference instruction.

In Gatto, Frank Gatto, a ground operations supervisor for JetBlue, brought a personal injury action against United, claiming that its aircraft caused a set of fueler stairs to crash into him. Gatto claimed that his injuries rendered him permanently disabled and that his disability limited his physical and social activities. United thus sought discovery of documents and information related to Gatto's social media accounts, but he didn't authorize the release of records from his Facebook account. Then, United

again requested authorization for the release of Plaintiff's Facebook records....Judge Waldor ordered Plaintiff to execute an authorization for the release of documents and information from Facebook, and Plaintiff agreed to change his account password to “alliedunited.”...While the parties dispute whether it was agreed that defense counsel would directly access Plaintiff's Facebook account, the parties do not dispute that the password was provided to counsel for the purpose of accessing documents and information from Facebook....
Plaintiff changed his password on December 5, 2011.... Shortly thereafter, counsel for United allegedly accessed the account “to confirm the password was changed,” and printed portions of Plaintiff's Facebook page....Counsel for Allied allegedly did not access or view any portion of Plaintiff's Facebook account....On December 9, 2011, counsel for Plaintiff sent an email to defense counsel indicating that Plaintiff had received an alert from Facebook that his account was logged onto from an unfamiliar IP address in New Jersey, and asked if Plaintiff's Facebook account had been accessed directly by defense counsel....On December 15, 2011, counsel for United confirmed that Plaintiff's Facebook account had been accessed and that Plaintiff's authorization “had been sent to Facebook with a Subpoena in order to obtain the entire contents of the account directly from Facebook.”...
While Facebook did respond to the subpoena served upon it, Facebook objected to providing certain information related to Plaintiff's account due to concerns regarding the Federal Stored Communications Act....Defendants allege that this issue was discussed with the Court during a telephone status conference on January 6, 2012, where Plaintiff's counsel advised that he would be willing to download the account information and provide a copy to the parties....Defendants allegedly agreed to Plaintiff's proposal, with the condition that Plaintiff would also provide a certification that the data was not modified or edited since the December 1, 2011 settlement conference....
However, on January 20, 2012, Defendants were advised by Plaintiff's counsel that Plaintiff's Facebook account had been deactivated on December 16, 2011, and that all of Plaintiff's account data was lost....Plaintiff allegedly deactivated his account because he had received notice that it was accessed on December 6 and 7 by a New Jersey IP address that was unknown to him, despite counsel for United having already confirmed that it had directly accessed Plaintiff's Facebook account....United's counsel requested that Plaintiff immediately reactivate his account, but the account could not be reactivated because Facebook had “automatically deleted” the account fourteen days after its deactivation....As a result, the contents of Plaintiff's Facebook account no longer exist and cannot be retrieved....
United thereafter claimed
that some of the contents of Plaintiff's Facebook account that were printed in black and white by counsel for United contain comments and photographs that contradict Plaintiff's claims and deposition testimony....This information allegedly includes physical and social activities in which Plaintiff engages, trips taken by Plaintiff, and evidence of Plaintiff's online business activities. 
The question for the court was thus whether to give an adverse inference, or “spoliation instruction,” which "permits a jury to infer that the fact that a document was not produced or destroyed is 'evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.'" According to the court, it had to find four factors before giving such an instruction:
(1) the evidence was within the party's control; (2) there was an actual suppression or withholding of evidence; (3) the evidence was destroyed or withheld was relevant to the claims or defenses; and (4) it was reasonably foreseeable that the evidence would be discoverable.
The court found that factors 1, 3, and 4 were satisfied, with the resolution hinging upon the second factor. According to the court,
As noted in Mosaid, the spoliation inference serves a remedial function, leveling the playing field after a party has destroyed or withheld relevant evidence, thereby prejudicing the opposing party....With regard to “actual suppression,” the court in Mosaid is clear in finding that, so long as the evidence is relevant, the “offending party's culpability is largely irrelevant,” as it cannot be denied that the opposing party has been prejudiced....Even if Plaintiff did not intend to permanently deprive the defendants of the information associated with his Facebook account, there is no dispute that Plaintiff intentionally deactivated the account. In doing so, and then failing to reactivate the account within the necessary time period, Plaintiff effectively caused the account to be permanently deleted. Neither defense counsel's allegedly inappropriate access of the Facebook account, nor Plaintiff's belated efforts to reactivate the account, negate the fact that Plaintiff failed to preserve relevant evidence. As a result, Defendants are prejudiced because they have lost access to evidence that is potentially relevant to Plaintiff's damages and credibility. In light of all of the above, a spoliation inference is appropriate....


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