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Spoliation of Social Media Evidence: New Jersey Court Cracks Down

Posted in Litigation

A March 23, 2013 decision from the U.S. District Court for the District of New Jersey serves as a cautionary tale for litigants. As a result of some arguably poor decisions by the plaintiff and likely miscommunication between the parties regarding access to the plaintiff’s Facebook account, the Court sanctioned the plaintiff for causing his account to be deleted.

In Gatto v. United Air Lines, Inc., plaintiff Frank Gatto, a ground operations supervisor at JFK International Airport, sued defendants United Air Lines and Allied Aviation Services. Gatto claimed that a United aircraft caused a set of fueler stairs operated by Allied to crash into him. Gatto claimed the accident left him permanently disabled, limiting his physical and social activities and rendering him unable to work.

Defendants sought discovery of Gatto’s social networking sites and other online services. Although the parties clearly agreed that Gatto would change his account password and provide it to defense counsel, Gatto apparently claimed that the parties had not agreed that defense counsel could directly access his Facebook account. In any event, defense counsel logged into Gatto’s account, purportedly to confirm that the password had been changed, and printed out portions of Gatto’s Facebook page. Defense counsel also sent a signed authorization to Facebook to access Gatto’s account, but Facebook objected and recommended that defense counsel have Gatto download his own account information.

After defense counsel logged into his account, Facebook notified Gatto that his account had been accessed from an unfamiliar IP address. Explaining later that his account had previously been hacked during an acrimonious divorce, Gatto deactivated his account. At some point after deactivation, the account contents were deleted and could no longer be retrieved. Claiming that the printed-out portions of Gatto’s account showed him engaged in physical and social activities inconsistent with his claimed injuries, the defendants brought a motion for spoliation sanctions. Specifically, the defendants sought an adverse inference instruction and expenses, including fees, incurred in filing the motion.

To issue sanctions, the court held that it needed to find four factors: (1) the evidence was within Gatto’s control; (2) the evidence was actually suppressed or withheld by Gatto; (3) the destroyed evidence was relevant to claims or defenses in the case; and (4) Gatto should have reasonably foreseen that the evidence would be discoverable. The court found that the first, third and fourth factors were clearly present.

With respect to the second factor, Gatto argued that he did not intentionally destroy anything. Gatto claimed he reasonably deactivated his account because of his prior experience with it being hacked. Gatto claimed that he had no idea that defense counsel had accessed his account. He also claimed that he had later tried to reactivate his account but that he had not acted quickly enough to save the data from being deleted.

The court found Gatto’s arguments unavailing, noting that the purpose of an adverse inference instruction is to “level[] the playing field” when one party has been prejudiced by the destruction, thus rendering the issue of an alleged spoliator’s culpability “largely irrelevant.” Gatto’s actions clearly prejudiced the defendants. This alone merited sanctions against Gatto. The court, however, found these sanctions sufficient and denied fees and costs.

There are two main takeaways from the Gatto case. First, as we have previously noted, commentators disagree about whether providing direct account access to an opposing party in discovery is wise. Gatto illustrates some of what can go wrong from providing such direct access. At least one commentator has called the “password exchange” a “terrible solution to Facebook discovery issues.” Nor, as we have previously reported, was a subpoena to Facebook necessarily the right approach, as Facebook objected in Gatto to providing certain information due to its concerns about violating the Stored Communications Act. Facebook recommended that Gatto download the contents of his account to obtain the information, an approach that at least one commentator has approved.

The second lesson is simple. If you are involved in litigation where social media evidence within your control may be relevant, don’t delete the data or deactivate the account, which could lead to deletion. This is not the first time a party has been sanctioned for spoliation of social media-related evidence, and it won’t be the last.