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Playing Hide-and-Seek: Failure to Preserve Footage and Non-Disclosure of Facebook Information May Lead to Adverse Inferences for Both Parties

The District Court judge ruled that an adverse inference was warranted for allegations of discovery abuse pertaining to messages sent on Facebook. In Patel v. Havana Bar, Judge Goldberg ordered both Plaintiff Patel and Defendant Havana Bar to incur sanctions for spoliation for the former’s failure to produce statements given in response to a Facebook message about the Plaintiff’s case and for the latter’s failure to preserve video footage of the incident in question.

Patel, which, at first glance seems to be a typical personal injury case, turns into an enigmatic situation in which both plaintiff’s and defendant’s counsels appear to be hiding information from each other. The incident that is the subject of the action in Patel dates back to September 8, 2007, when Plaintiff went to Defendant’s restaurant to attend an engagement party. At the party, Plaintiff appears to have “fallen” from the balcony after which Plaintiff brought suit in District Court raising myriad claims including either that Plaintiff fell from a dangerous condition at the defendant’s restaurant or he fell because employees at the restaurant kept serving him alcohol with the knowledge that he was intoxicated. To the judges’ dismay, however, the restaurant’s owner watched surveillance footage close to the time of the incident, but when there were issues with the footage, failed to follow-up with the system’s provider, which would have been a reasonable alternative measure that would have prevented spoliation.

As the case progressed, however, there was increasing evidence that Plaintiff attempted to change his theory of liability from a claim centering on the bar’s hazardous conditions to that focused on

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the bar staff serving him drinks after signs of visible intoxication. The Plaintiff’s sister-in-law sent out a Facebook message in 2008 to those present at the party requesting information that appeared to be more like solicitations of favorable accounts of what transpired that night. She wrote, “We’re just asking that everyone give accurate accounts of the night because we all know he [Plaintiff] did not drink enough to be wasted by that point and we all know that the kid is always acting crazy even when he’s sober because he just loves being the life of the party.” Two years later, the sister-in-law sent yet another Facebook message informing the party’s attendees that the lawyer was now approaching the case differently and that the party now needed statements that asserted that the plaintiff did not jump but rather “fell over the railing.”

Claims of spoliation thus arose, as, according to the Defendant, the Plaintiff did not submit these statements to Defendant despite a duty to preserve evidence when a litigant “knows or reasonably should know will likely be requested in a reasonably foreseeable litigation.” Here, what the plaintiffs should not have done was withhold the statements in response to the 2008 Facebook message and, if they wanted to assert that the statements were protected from disclosure under the work-product doctrine as they attempted to do, they should have raised the privilege early on and described the documents withheld in a privilege log. On the other hand, the Defendants were found guilty of spoliation when they failed to preserve the video footage. As the Court suggests, what the Defendants could have done was “timely make a follow-up call despite the fact that the [video] issues were not resolved.”

All is not lost though, as Defendant’s request for the ultimate sanction-dismissal of Plaintiff’s case-was not granted. Rather, the Court found that an adverse inference instruction was proper for both parties, which allows the jury to “receive the fact” of the party’s unwillingness to produce the evidence as a result of a “well-founded fear that the contents would harm” the party whose acts constituted spoliation. While the Defendant’s claim for dismissal was rejected, for dismissal should be granted in the most serious of circumstances, and only upon a consideration of six factors, including: (1) the extent of the party’s personal responsibility; (2) the prejudice caused to the adversary; (3) a history of dilatoriness; (4) whether the act was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal; and (6) the meritoriousness of the claim or defense, the Defendant was given an opportunity to re-depose certain witnesses at the expense of the Plaintiff as well as attorney’s fees incurred in trying to obtain the 2008 and 2010 witnesses statements. With spoliation sanctions given to both sides, attorneys should be wary before they play hide-and-seek with evidence a party may rely upon for litigation.

Author Bio: S.A.A. is a student at Seton Hall University School of Law, Class of 2012. Receiving awards for the Best Memorandum, Appellate Brief, and Oral Argument in her class section, S.A.A. hopes to pursue a career in public interest. Prior to law school, she was a 2009 magna cum laude graduate of Hofstra University’s Honors College where she majored in Political Science. S.A.A.’s experience include legal research and writing for a Professor of Law and most recently, the Chief Judge of a municipal court.

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