Plaintiffs Take Note: Deletion of Facebook May Be eDiscovery Spoliation
Our last blog reviewed the facts and timeline in the ongoing New Jersey case and order from Gatto v. United Air Lines, Inc., Civil Action No.: 10-cv-1090-ES-SCM (N.D.N.J. March 25, 2013). The parties disagreed on whether a previous order requiring plaintiff to provide his Facebook account meant the defendant had free access to the account, or whether that was pnly for authorization to obtain the information directly from Facebook. After the defendant accessed the account with the new password, the plaintiff deleted the account and per Facebook policy, the electronic data was completely deleted 14 days after.
Now the court considers: Are sanctions appropriate in this case? If so, what type of sanction? The defendants sought an adverse inference instruction, which would tell the jury that the destroyed evidence would have favored the other party (the defendants in this case.) For an adverse inference instruction to be warranted, the court considered whether four factors were present:
- The evidence was within the parties control;
- There was an actual suppression or withholding of evidence;
- The evidence destroyed was relevant to a claim or defense; and
- It was reasonably foreseeable that the evidence would be discoverable.
When reviewing the facts of this case, the court found the first, third and fourth factor was easily met. In arguing that the second factor was not met, plaintiff claimed that he had been involved in a divorce, and that his Facebook account had been hacked before. Therefore, he claims he acted reasonably in deleting the account when Facebook informed him a different IP user was accessing the account. Plaintiff’s counsel backed up his client, telling the court that he did not specifically inform the plaintiff that it was the defense who signed into the account. Also, plaintiff alleged that he had no idea the data would be permanently deleted after 14 days.
The court held that the spoliation inference was appropriate. Whatever the reason, plaintiff purposefully deleted the account after clearly knowing that the defense needed the electronic data. However, the court did allow plaintiff a bit of leeway, as the court wrote that plaintiff was not motivated by fraudulent purposes or diversionary tactics. Therefore, the court denied the defendant’s motion for attorney fees as an additional sanction.