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Stop Spoliating, Bro: Facebook deactivation and spoliation

Facts of the case:

Mr. Gatto was a ground supervisor at JFK. He was injured when one of United Airline's planes bumped into a set of fueler stairs that hit him. He sued, and alleged that because of his injuries he was permanently disabled and hadn't been able to work since 2008. He also claimed that his physical and social activities had been limited. The Defense attorney sought access to the Plaintiff's Facebook account in relation to these claims. The Plaintiff responded to the Defendants request for information related to social media but denied access to only Facebook.

The Judge ordered the Plaintiff to change his Facebook password to one all the parties knew and to release all documents and information from Facebook for Defendants' discovery. The Defense did access the Facebook account to make sure the password had been changed, and then a month later the Plaintiff informed the Defense that the account had been deactivated and all the data had been permanently lost.

There was an argument over Facebook's policies with regard to deactivation and cancellation, but the court ruled that it was "irrelevant whether the Plaintiff requested that his account be deleted or merely deactivated, as either scenario involves the withholding or destruction of evidence." The Defendants asked for an adverse jury instruction stating that a document was destroyed, and that was evidence the party that has prevented production, and did so out of the well-founded fear that the contents would harm him.

The court's analysis:

The court relied on four factors in deciding whether to impose the adverse inference instruction:

· (1) evidence was within the party's control;

· (2) there was an actual suppression or withholding of evidence;

· (3) the evidence destroyed or withheld was relevant to the claims or defenses; and

· (4) it was reasonably foreseeable that the evidence would be discoverable.

The court ruled that the first, third, and fourth factors were satisfied because the Plaintiff had individual control of the account, his deactivation caused the account's ultimate irreversible deletion, plus he was aware that this information was reasonably necessary to the litigation.

With regards to the second factor the court ruled that actual suppression is found as long as the evidence is relevant. Since the Plaintiff intentionally deactivated his account nearly 5 months after being made aware that defendants wanted to discover its contents for the purposes of litigation, then the Defendants will be entitled to the adverse inference if the case goes to trial.

What this means:

This case shows the need for defense attorneys to always request access to all social media including Facebook. The defense counsel also needs to make the argument that production of the account is necessary to show the limitations of Plaintiff's in personal injury cases. By using the same factors as this court considered, the defense has to argue the intentional deletion of the person's Facebook is the intentional deletion of crucial evidence. If this argument prevails and the defense is able to receive something similar to this jury instruction, think of what that does to the always ongoing settlement negotiations.

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