A federal court has ordered 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 for destroying evidence. See Gatto v. United Air Lines, Inc., No. 10-cv-1090, 2013 U.S. Dist. LEXIS 41909, slip op. at 11 (D.N.J. Mar. 25, 2013). The plaintiff did not just try to “clean up” his Facebook page; he permanently deleted it. According to the court, the permanent deletion of the plaintiff’s account prejudiced the defendants “because they have lost access to evidence that is potentially relevant to Plaintiff’s damages and credibility.”  Id. at 10.

Plaintiff Argued Permanent Deletion of His Facebook Account was “Accidental”
In Gatto, the plaintiff alleged that he sustained permanently disabling injuries while working as a ground operations supervisor at JFK airport after an aircraft caused a set of fueler stairs to crash into him. The defendants sought discovery relating to the plaintiff’s damages and social activities, and the plaintiff provided the defendants with signed authorizations for the release of information from certain social networking sites and other online services like eBay and PayPal. The plaintiff did not include, however, an authorization for his Facebook account.

After the court ordered the plaintiff to execute an authorization for his Facebook account, counsel for one of the defendants briefly accessed the account and printed some portions of the plaintiff’s Facebook page. The plaintiff then received an alert from Facebook that his account was accessed from an unfamiliar IP address. Even though defense counsel confirmed with the plaintiff’s counsel that the account had been accessed by counsel, the plaintiff “deactivated” his account. The deactivation of the plaintiff’s account resulted in its permanent deletion. Accordingly, the defendants maintained that they could no longer retrieve any information from the plaintiff’s Facebook account.

The plaintiff claimed he had merely deactivated his account and then neglected to reactivate it within fourteen days, thus accidentally causing the account to be “automatically” and permanently deleted in accordance with Facebook’s policy at that time. According to the plaintiff, he had recently been involved in contentious divorce proceedings and his Facebook account had been “hacked into” on numerous occasions before the lawsuit. The plaintiff argued that he acted reasonably after receiving notice from Facebook that his account had been accessed from an unauthorized IP address which he was unfamiliar with. The court found that it was “irrelevant” whether the plaintiff had requested his account to be permanently deleted or merely deactivated, as either scenario ultimately resulted in the loss of evidence.

We note that had the plaintiff merely attempted to “delete” material while leaving his account active, or the account had not been permanently deleted with no option for recovery, chances are the defendants could still have discovered the information in the account through Facebook’s built-in tools, as explained in our prior post.

Plaintiff Failed to Preserve Relevant Evidence and Prejudiced Defendants
In granting the defendants’ motion for spoliation sanctions, the court applied a four-factor test to determine whether an adverse inference instruction was appropriate. The court examined the following four factors:

  1. whether the evidence was within the party’s control;
  2. whether there was an actual suppression or withholding of evidence;
  3. whether the evidence destroyed or withheld was relevant to the claims or defenses; and
  4. whether it was reasonably foreseeable that the evidence would be discoverable.

First, the court found that the plaintiff’s Facebook account was “clearly within his control,” as he had “authority to add, delete, or modify his account’s content.” Gatto, slip op. 8. Interestingly, the court cited to Arteria Property Pty Ltd. v. Universal Funding V.T.O., Inc., No. 05-cv-4896, 2008 U.S. Dist. LEXIS 77199 (D.N.J. Oct. 1, 2008), in support of its finding. In Arteria Property, the court held that a party had control over a website for purposes of spoliation because the party “had control over the content posted on [it].” Arteria Property, slip op. at 10. The court in that case further reasoned:

Although Defendants do not so posit, it may be argued that the website was maintained by a third party, perhaps a web design company who posted content on behalf of Defendants. But this is irrelevant, just as it’d be irrelevant if the website was maintained on a third party server rather than Defendant’s own server (as is likely the case here). Despite the inevitable presence of an intermediary when posting content on the Web, the Court finds that Defendants still had the ultimate authority, and thus control, to add, delete or modify the website’s content.

Id. at 10.

Second, the court in Gatto found that the posts, comments, status updates and other information posted on the plaintiff’s Facebook page after the date of the alleged accident were relevant to the issue of damages. Comments and photographs printed from the plaintiff’s Facebook page showed the plaintiff’s physical and social activities, trips and online business activities.

Third, the court found that the plaintiff failed to preserve relevant evidence and that the defendants were prejudiced. The court was not persuaded by the plaintiff’s arguments regarding whether the evidence had been intentionally deleted, stating that “so long as the evidence is relevant, the ‘offending party’s culpability is largely irrelevant.’” Gatto, slip op. 10.

Fourth, the court found that it was reasonably foreseeable that the plaintiff’s Facebook account would be sought in discovery.

Based on its findings, the court concluded that an adverse inference instruction, or “spoliation instruction,” was appropriate. According to the court, this instruction “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.’” Gatto, slip op. 7.

Federal courts have moved past deciding the question of whether information posted on social networking websites is discoverable. Courts expect parties to preserve social media information if it is relevant to the claims and defenses in the case. If relevant social media information is not preserved, courts will consider whether they should impose sanctions for spoliation, just like they do with other forms of electronically stored information (ESI). Potential sanctions for spoliation include dismissal of claims or granting judgment in favor of a prejudiced party, exclusion of evidence, an adverse inference jury instruction, fines, and attorneys’ fees and costs.

Additionally, the court’s quick determination that the plaintiff’s Facebook account was “clearly within his control” because he “had authority to add, delete, or modify his account’s content” could be significant in future cases. As more data gets created and stored “in the cloud,” a key e-discovery issue will be the extent to which parties are found to have “possession, custody, or control” over data stored with cloud service providers as well as the extent to which they have responsibility for any deletion or alteration of that data (including metadata). The court’s test for “control” in Gatto (and the earlier Arteria Property case) indicates that parties will not be able to avoid the obligations and risks of e-discovery when they move their applications and data storage to the cloud.