An opinion from March in a personal injury case involving the deletion of a Facebook account is a good lesson for ediscovery professionals about the vulnerability of social media to irretrievable loss. U.S. Magistrate Steven Mannion ordered an adverse inference instruction to the jury after the plaintiff in Gatto v. United Air Lines was determined to have “intentionally deleted the account” (*4). The plaintiff did avoid even harsher penalties because the court believed that he “does not appear to be motivated by fraudulent purposes or diversionary tactics, and the loss of evidence will not cause unnecessary delay.” (*5)
The case stemmed from an on-the-job injury for the plaintiff, a baggage handler, who was injured while unloading baggage at JFK Airport in January 2008 and suffered serious injuries resulting in permanent disability. The defendants, as part of their discovery, wanted to look at the plaintiff’s social media to evaluate the impact on his lifestyle. In November 2011, the plaintiff granted signed authorizations to all of his social media and online accounts – all except for Facebook. (*1) The defense was persistent and it was agreed in a pre-trial settlement conference in early December 2011 that the plaintiff would allow access to his account and changed it to shared password of “alliedunited.” (*1)
The defense team accessed the plaintiff’s Facebook account and gathered some information. However, after the plaintiff received a few alerts of unfamiliar computers accessing the account, he deactivated it, claiming that his account had been hacked in the past. The defense had gathered some information, but had not completed its work and went directly to Facebook. The social media giant “instead recommended that the account holder download the entire contents of the account as an alternative method for obtaining the information. (*2)
In early January 2012, plaintiffs counsel agreed to allow access to the account but were subsequently informed on January 20, 2012, that the account had been lost. The plaintiff’s “account could not be reactivated because Facebook had “automatically deleted” the account fourteen days after its deactivation,” (*2) which occurred on December 16, 2011. The defense team claimed some “shenanigans” on the part of the plaintiff, specifically that he took more proactive steps to delete the information than simply being ignorant of the 14-day deletion policy. (*2)
The defense team requested an adverse inference and monetary sanctions. Judge Mannion determined that the threshold for issuing an adverse inference instruction had been met, including the following four factors (*4):
- The evidence was within the party’s control;
- There was an actual suppression or withholding of evidence;
- The evidence was destroyed or withheld was relevant to the claims or defenses; and
- It was reasonably foreseeable that the evidence would be discoverable.
The court didn’t find malice in the plaintiffs action but granted the adverse inference instruction because the “Defendants are prejudiced because they have lost access to evidence that is potentially relevant to Plaintiff’s damages and credibility. In light of all of the above, a spoliation inference is appropriate.” (*4)
Whether the data was lost by accident or “by accident,” is relevant to the consequences in this case. But the takeaway for attorneys is to understand how social media is handled and how it can be disposed of in order that they can avoid similar outcomes in the future.