The average Facebook user spends 8.3 hours per month, and posts 217 total photos, to the 800 pound social media gorilla. What happens, however, when a litigant’s Facebook (or other social media) account disappears during litigation? Gatto v. United Air Lines (D.N.J. 3/25/13), one of the first cases to discuss spoliation of social media evidence, provides an answer.
For the uninitiated, spoliation occurs where evidence is destroyed or significantly altered, or where a party fails to preserve information, documents or other property for another’s use as evidence in pending or reasonably foreseeable litigation.
In Gatto, Frank Gatto brought a personal injury action against United, claiming that its aircraft caused a set of stairs to crash into him. He claimed that his injuries rendered him permanently disabled, limiting his physical and social activities. After Gatto refused to turn over information related to his Facebook account in discovery, the court ordered him to authorize the release of documents and information from his Facebook account. Gatto both authorized the release necessary for Facebook to respond to a subpoena and provided United’s counsel a temporary password to his Facebook account. When Gatto received notice, however, that someone had logged into his account from an unknown IP address, Gatto deactivated his account. Fourteen days later, Facebook automatically deleted the deactivated account, rendering the account and the information therein irretrievable.
United claimed that when its counsel viewed the account, it saw “comments and photographs that contradict Plaintiff’s claims and deposition testimony …, includ[ing] physical and social activities in which Plaintiff engages, trips taken by Plaintiff, and evidence of Plaintiff’s online business activities.” Because that information was destroyed as a result of Gatto’s deactivation of the account, United asked the court for an adverse inference instruction, which would allow the jury to infer that the fact that a document was not produced or destroyed is evidence that the document was harmful to that party. Depending on the evidence, such an instruction can be fatal to one's case.
The court agreed:
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.
Spoliation will turn your case from one on the merits of your employment decision to one on the merits of your evidence preservation. Do everything reasonably possible to preserve and protect your social media and that of your employees to ensure that your case is decided on the merits of your employment decision and not on the merits of your evidence preservation efforts (or lack thereof).
[Hat tip: EvidenceProf Blog]