Discovery of social-media evidence can be a valuable tool, particularly in employment and personal-injury litigation. Employers’ lawyers should be aware not only of the potentially relevant evidence in a plaintiff-employee’s Facebook account. They also should be very aware of the ethical implications relating to their own client’s social-media activities. One such implication is the potential spoliation of evidence. A new decision from the U.S. District Court of New Jersey offers an important reminder of this critical duty.
The plaintiff, a baggage handler, alleged that he was injured when a set of feuler stairs crashed into him. He claimed that, because of his injuries, he was permanently disabled, was unable to work, and was limited in his physical and social activities.
During litigation, the defendants sought discovery regarding the plaintiff’s damages and social activities. Plaintiff signed authorization forms form eBay, PayPal, and some social-networking sites but not for his Facebook account.
At a settlement conference, the Magistrate Judge ordered the plaintiff to execute an authorization for his Facebook account. The plaintiff agreed to change his password so the defendants’ counsel could access the contents of his Facebook account. After the conference, the defendants’ counsel logged in and printed some of plaintiff’s profile page.
As a result, the plaintiff got a notice from Facebook informing him that his account had been accessed from an unauthorized ISP address. According to the plaintiff, he deactivated the account upon receiving the alert from Facebook but, 14 days later, Facebook “automatically deleted” the account and all of its contents. Therefore, all of the contents were lost permanently. The court ordered spoliation sanctions against the plaintiff in the form of an adverse inference.
Now, the reality is that the plaintiff actually deleted the account. Deactivating your Facebook account does not result in the “automatic deletion” of the account. Apparently, the plaintiff thought that he was deactivating it but actually deleted it.
News to me was that Facebook permanently deletes contents of any account that is deleted and that it does so just 14 days after the account is deleted.
Either way, this case should serve as an important reminder to lawyers of their duty to take an active role in the preservation and/or production of clients’ social-media contents.
Gatto v. U. Air Lines, Inc., No. 10-cv-1090-ES-SCM (D.N.J. Mar. 25, 2013).