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.

Subsequently, Plaintiff was ordered to execute an authorization for the release of Facebook records.  Plaintiff also agreed to change his Facebook password.  Although there are conflicting accounts of whether Defendants’ attorneys were authorized to access Plaintiff’s profile directly, at least one attorney for Defendant United Air Lines did so, “to confirm the password was changed.”  That attorney also printed certain pages from the account which were alleged to contradict Plaintiff’s claims.  In response to an inquiry from Plaintiff’s counsel, prompted by Plaintiff’s receipt of an alert that his account had been accessed from an unfamiliar IP address, Defendant’s counsel confirmed that he had accessed the account.

Ultimately, despite receiving Plaintiff’s authorization and a subpoena, Facebook refused to produce certain data, citing the Federal Stored Communications Act.  Thereafter, Plaintiff’s counsel agreed to download and produce the requested account information.  Approximately two weeks later, however, Defendants were advised that Plaintiff’s Facebook account had been deactivated and that all data had been lost.  Efforts to reactivate the account were unsuccessful allegedly because Facebook had automatically deleted the account fourteen days after its deactivation.  Although there was a question of whether Plaintiff merely deactivated his account or permanently deleted it, the court indicated it made no difference as “either scenario involve[d] the withholding or destruction of evidence.”

Plaintiff argued that he had not intentionally destroyed evidence or violated a court order.  He explained that he had recently been involved in contentious divorce proceedings during which his account had been “hacked into” on a number of occasions and that he therefore acted reasonably by deactivating his account following notice that it had been accessed by an unknown IP address.  He further asserted that the loss of data was “entirely the result” of Facebook automatically deleting the account.  In support of these claims, Plaintiff’s counsel alleged that Plaintiff had not been “personally advised” that it was defense counsel who had accessed his account until after the account was deleted.

As to the question of spoliation and more specifically the possibility of imposing an adverse inference, the court turned to the relevant four-factor analysis ((1) the evidence was within the party’s control; (2) there was an actual suppression or withholding of evidence; (3) the evidence was [sic] destroyed or withheld was relevant to the claims or defenses; and (4) it was reasonably foreseeable that the evidence would be discoverable) and indicated that factors 1, 3, and 4 were “clearly” satisfied.  Thus, the court focused on the question of whether there was “actual suppression or withholding of evidence.”  Notably, as to the question of forseeability (factor 4), the court pointed out that Defendants had requested Plaintiff’s Facebook information nearly five months before it was deactivated and that Plaintiff had been ordered to sign the Facebook authorization during a December 1 settlement conference; Plaintiff deactivated his account on December 16.

“The court [was] not persuaded by Plaintiff’s arguments regarding whether the evidence at issue was intentionally suppressed,” and found that a spoliation inference was appropriate.  First, the court cited Mosaid Techs. v. Samsung Elecs., 348 F. Supp. 2d 332 (D.N.J. 2004) for the premise that “so long as the evidence is relevant, the ‘offending party’s culpability is largely irrelevant,’ as it cannot be denied that the opposing party has been prejudiced.”  The court then reasoned that even if Plaintiff did not intend to deprive Defendants of relevant evidence, there was no dispute that Plaintiff intentionally deactivated the account and further reasoned that Plaintiff’s failure to reactivate the account in a timely manner resulted in the account’s permanent deletion.  Moreover, no explanation, including that defense counsel had inappropriately accessed the account or that Plaintiff had attempted to reactivate it “negate the fact that Plaintiff failed to preserve relevant evidence.”  As a result, Defendants were prejudiced and sanctions were warranted.

Accordingly, the court imposed an adverse inference, but declined to impose monetary sanctions.

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