A United States District Court judge in New Jersey recently decided to instruct a jury at trial that it could draw an adverse inference against the plaintiff for failing to preserve his Facebook account. Gatto v. United Air Lines, Inc., 2013 WL 1285285, D.N.J., NO. 10-CV-1090-ES-SCM (March 25, 2013). In Gatto, after the court ordered plaintiff to execute an authorization for the release of documents and information from Facebook and the plaintiff agreed to change his account password so the defendants could access documents and information from his Facebook account, plaintiff deactivated his account and failed to reactivate it before Facebook “automatically deleted” his account. The court held that plaintiff had control of his Facebook account and knew it was relevant to the litigation, and it was reasonably foreseeable that the defendants would seek information from his Facebook account in discovery; thus, plaintiff had a duty to preserve the account. His failure to reactivate the account within the necessary timeframe effectively caused the account to be permanently deleted, prejudicing the defendants. The Court therefore found that a spoliation inference instruction was appropriate. The court declined to award the defendant’s request for attorney’s fees and costs, however, because it did not find plaintiff’s destruction of evidence to be motivated by fraudulent purposes or diversionary tactics.
While this District of New Jersey decision is not binding on courts in New England, there are several practice pointers to be learned from it:
- The discoverability of social media data is scrutinized just as any other information is. If a party can show the social media data might contain information that will reasonably lead to the discovery of admissible evidence, it will be discoverable.
- As soon as possible after the inception of a case, litigants should make inquiries in written discovery, sufficiently limited in both time and scope, about the other parties’ social media activities. Engaging an investigator to conduct a social media search to determine what social media accounts a party maintained at the outset of a case will help support a motion to compel or spoliation claim against a party who later claims to no longer maintain social media accounts.
- Litigants should be aware and wary of the information posted on their social media sites. They also need to be cognizant of their potential duty to disclose information about social media accounts and ensure that accounts are not cancelled, or as occurred in Gatto, deactivated and inadvertently deleted due to a failure to timely reactivate.
The scope of social media data’s relevance and admissibility, as well as what constitutes spoliation when social media accounts have been deleted, are surely to be hotly litigated issues in the future. Keeping these items in mind could minimize some litigation costs associated with social media discovery, and avoid sanctions that might be imposed if the accounts are not preserved.