Failure To Disclose And Subsequent Deletion of Social Media Account Leads to Adverse Inference Sanction
In Cordova v. Walmart Puerto Rico, Inc., et. al., No. 16-2195 (ADC) (D.P.R. July 16, 2019), the judge imposed a sanction of adverse inference against Plaintiff due to Plaintiff’s failure to disclose and subsequent deletion of a social media account while the litigation was pending.
This case involves allegations of unlawful discrimination, retaliation, and unjust dismissal by Defendant. During the course of litigation, Defendant issued interrogatories and request for production of documents related to Plaintiff’s social media accounts. In response, Plaintiff stated that although she once had a Facebook account, it was presently closed and that she could no longer access the account due to her inability to recall the name of the account.
During the course of discovery, however, Defendant was able to identify Plaintiff’s public Facebook account under the name ‘Cordova Eigna’, which was Plaintiff’s second last-name and her first name spelled backwards. This account had been opened in 2009 and had been updated by Plaintiff during the course of the litigation, including a posted comment about ‘living happily ever after.’ That same afternoon, however, the account was deleted and became unavailable. Consequently, Defendant filed a motion which asserted that Plaintiff was duplicitous about the Facebook discovery in question and requested a case dismissal.
In his ruling, Judge Delgado-Colon found that “Plaintiff failed to comply with her obligation under Fed. R. Civ. 26(e) to supplement discovery responses to Defendant’s requests regarding her Facebook account. Specifically, taking as true Plaintiff’s contention that she was blocked out of said account for a period of time after having lost her cell phone, she was obligated to voluntarily inform Defendant when she later regained access and resumed her activities on Facebook. In that respect, the Court rejects Plaintiff’s explanation that she was unaware of having to do so because discovery had concluded, and Defendant’s summary judgment motion was pending adjudication. Those are not valid reasons for Plaintiff’s non-compliance with her disclosure obligations under Fed. R. Civ. P. 26(e), especially regarding an ongoing, contentious discovery issue and given that Plaintiff has been represented by counsel at all times in this case.”
As a result, Judge Delgado-Colon granted in part and denied in part Defendant’s motion, stating: “Defendant’s request for dismissal is denied. However, the Court hereby imposes as sanction an adverse inference regarding the content of Plaintiff’s Facebook page and her deletion of the related account. Accordingly, Defendant shall submit a proposed adverse-inference jury instruction to that effect before trial.”