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Plaintiff Receives Adverse Inference Sanction for Deleting Facebook Profile – eDiscovery Case Law

Unlike last week’s case law summary about a case where a request for social media data was denied, this week’s case law summary relates to sanctions for deleting a social media data profile.

In Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, (D.N.J. Mar. 25, 2013), New Jersey Magistrate Judge Steven C. Mannion issued an adverse inference sanction against the plaintiff for failing to preserve data due to the fact that he either, deactivated his Facebook account and allowed the account to be automatically deleted after fourteen days, or that he deleted the account outright.  Judge Mannion denied the defendant’s request for attorney’s fees and costs for “the time and effort it was forced to expend in an effort to obtain discovery”.

Case Background

In this personal injury action, a ground operations supervisor alleged injuries after vehicles operated by the defendants did “crash into him”.  The defendants served a production request to the plaintiff in July 2011 which included a request for documents and information related to social media accounts maintained by the plaintiff.  In November 2011, the plaintiff provided the defendants with signed authorizations for the release of information from sites such as eBay and PayPal, but did not include an authorization for the release of records from Facebook.  In a settlement conference in December 2011, the judge ordered the plaintiff to execute an authorization for the release of documents and information from Facebook and the plaintiff agreed to change his password and provide it to the defendants.

However, the parties disputed whether it was agreed that defense counsel would directly access the plaintiff’s Facebook account.  The defendants subsequently accessed the account and the plaintiff received an alert from Facebook that his account was logged onto from an unfamiliar IP address.  After, in January 2012, the plaintiff’s counsel agreed to download the Facebook account information and provide a copy to the parties, it was determined that the plaintiff’s Facebook account had been deactivated back on December 16, 2011 (after he received the alert from Facebook), and that all of the plaintiff’s account data was lost.  As a result, the defendants requested the adverse inference instruction and monetary sanctions.

Judge’s Evaluation and Ruling

Judge Mannion noted four factors in considering an adverse inference instruction sanction:

  1. the evidence was within the party’s control;
  2. there was an actual suppression or withholding of evidence;
  3. the evidence was destroyed or withheld was relevant to the claims or defenses; and
  4. it was reasonably foreseeable that the evidence would be discoverable.

Judge Mannion stated, “Here, the deletion of Plaintiff’s Facebook account clearly satisfies the first, third, and fourth of the aforementioned factors.  Plaintiff’s Facebook account was clearly within his control, as Plaintiff had authority to add, delete, or modify his account’s content…It is also clear that Plaintiff’s Facebook account was relevant to the litigation.”  With regard to the second factor and the plaintiff’s claim that the deletion was unintentional, Judge Mannion ruled that “Even if Plaintiff did not intend to permanently deprive the defendants of the information associated with his Facebook account, there is no dispute that Plaintiff intentionally deactivated the account. In doing so, and then failing to reactivate the account within the necessary time period, Plaintiff effectively caused the account to be permanently deleted.”  Finding all four factors satisfied, Judge Mannion granted the adverse inference instruction sanction.  With regard to the request for fees and costs, Judge Mannion ruled that “such a decision is left to the discretion of the court” and denied the request.

So, what do you think?  Was the sanction appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

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