Archive: April 12, 2013

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Court Imposes Adverse Inference for Failure to Preserve Facebook
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Da Silva Moore: Second Circuit Denies Petition for Writ of Mandamus Compelling Recusal of Magistrate Judge Peck

Court Imposes Adverse Inference for Failure to Preserve Facebook

Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013)

In this personal injury action, the court imposed spoliation sanctions for Plaintiff’s failure to preserve his Facebook account.

Plaintiff alleged that as the result of a work-related accident he sustained numerous injuries that rendered him permanently disabled.  Defendants sought production of information related to Plaintiff’s social media accounts and online business activities such as eBay.  In response, Plaintiff provided signed authorizations for the release of information from certain sites, but did not include authorization for the release of records from Facebook.

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Da Silva Moore: Second Circuit Denies Petition for Writ of Mandamus Compelling Recusal of Magistrate Judge Peck

In what is possibly the final chapter to last year’s Da Silva Moore predictive coding saga, the Second Circuit has denied Plaintiffs’ petition for a writ of mandamus compelling the recusal of Magistrate Judge Andrew Peck.  For those unfamiliar with the issues in this case, copies of the underlying decisions from both Magistrate Judge Peck and District Court Judge Carter are available here and here.  While a copy of the Second Circuit’s denial is available below, the full text of the order states:

Petitioners, through counsel, petition this Court for a writ of mandamus compelling the recusal of Magistrate Judge Andrew J. Peck.  Upon due consideration, it is hereby ORDERED that the mandamus petition is DENIED because Petitioners have not “clearly and indisputably demonstrate[d] that [Magistrate Judge Peck] abused [his] discretion” in denying their district court recusal motion, In re Basciano, 542 F. 3d 950, 956 (2d Cir. 2008) (internal quotation marks omitted) (quoting In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312-13 (2d Cir. 1988)), or that the district court erred in overruling their objection to that decision.

A copy of the court’s order is available here.

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