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May 2013

New Jersey District Court Approves Spoliation Sanction for Plaintiff's Deactivation of Facebook Account

In a recent decision from the District of New Jersey, the court held that the plaintiff had spoliated, i.e., destroyed and/or failed to preserve, potentially relevant electronic information by deactivating his Facebook account. The district court’s holding is significant because it found spoliation even where the plaintiff claimed that the electronic information had been deleted through no fault of his own.

In Gatto v. United Air Lines, Inc., 2013 U.S. Dist. LEXIS 41909 (D.N.J. Mar. 25, 2013), plaintiff Frank Gatto alleged that he suffered permanently disabling injuries while employed as a ground operations supervisor with JetBlue Airways Corp. He claimed that his injuries prevented him from working and limited his physical and social activities.  In July 2011, during discovery, the defendants sought the plaintiff’s social media information, asking for all records of “wall posts, comments, status updates or personal information posted or made by Plaintiff on Facebook and/or any social media website from 2008 through the present.”

The defendants also requested that Gatto sign release authorization forms for his Facebook, MySpace, eBay, and PayPal accounts.  Plaintiff returned the signed authorizations, except for the one directed to Facebook.  During a December 1, 2011 conference, the magistrate judge ordered Gatto to execute the Facebook authorization and he agreed to enable access by changing his password to one disclosed to the defendants. 

Gatto later claimed that he inadvertently deactivated his account after receiving a notice that someone was trying to access it.  Facebook, according to its policy, automatically deleted Gatto’s account after 14 days without reactivation.  Defendants moved for sanctions, arguing that Gatto intentionally deleted his account because the postings on his page related to his trips, social activities, and an eBay business would have refuted his damage claims.  Gatto argued that there was nothing intentional or actually suppressed from the page and that his actions were reasonable.  He also stated that the permanent deletion was accidental and due to Facebook’s automatic deletion policy, and through no fault of his own.

Upon defendants’ motion, the key question the court faced was whether Gatto had destroyed evidence.  In New Jersey, there are four elements to spoliation: (1) the evidence must be within a party’s control; (2) an actual suppression or withholding; (3) of relevant evidence; (4) where it was reasonably foreseeable that the evidence would be discoverable. The court focused on whether there was an “actual suppression or withholding.”

The court opined that 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.”  It further noted that the plaintiff effectively “caused the account to be permanently deleted” and as such, the “plaintiff failed to preserve the relevant evidence,” causing permanent loss of evidence potentially relevant to his damages and credibility.

Thus, the court held that the plaintiff engaged in spoliation, thereby entitling the defendants to the adverse inference instruction, but not to legal fees because “destruction of evidence does not appear to be motivated by fraudulent purposes or diversionary tactics, and the loss of evidence will not cause unnecessary delay.” The adverse inference instruction was the appropriate remedy, the court noted, because the plaintiff had failed to preserve relevant evidence, “had a duty to preserve his Facebook account at the time it was deactivated and deleted,” and the defense would not be prejudiced in any way by this loss of the evidence.
With the prevalence of Facebook, LinkedIn, and other social media outlets, this scenario could easily arise in any type of litigation.  Gatto holds that the deletion of electronic information, even when not done directly by a party, can be considered spoliation of evidence.  Therefore, this holding could have an immediate effect on document retention policies and attorney instructions to clients regarding their various social media pages.  Conversely, Gatto shows the potential value of adding requests for information and postings from social media websites to discovery requests.


Commercial Litigation

Commercial Litigation