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Deactivating your Facebook account and passively allowing it to be permanently deleted can be considered the intentional destruction of evidence. The Plaintiff in Gatto is now facing a potentially damaging adverse jury instruction if he takes his case to trial. In Gatto, a ground operations supervisor at JFK Airport was injured in his course of employment when one of the United Airline’s planes bumped into a set of fueler stairs, causing them to run into the plaintiff. In his suit, Plaintiff alleges that due to the crash he has suffered various serious injuries, is permanently disabled, hasn’t been able to work since July of 2008, and his physical and social activities have been limited. Defendants sought access to Plantiff’s Facebook account in relation to these claims.
Starting in December of 2011, the Defendants requested documents and information related to Plaintiff’s social media and online business activities. Plaintiff responded to the initial request and authorized access to all of his electronic activities except Facebook. Subsequently, through an in-person settlement conference with the Magistrate Judge, Plaintiff was ordered to change his Facebook password to one all the parties knew and release all documents and information from Facebook for Defendants’ discovery.
On December 9, 2011, Plaintiff’s counsel emailed the Defense stating that Plaintiff had receive an alert from Facebook noting that his account had been accessed from an unfamiliar IP address. Counsel for United responded six days later confirming that they had accessed the account to make sure the new password was put in place and to print portions of the page.
However, on January 20, 2012, Plaintiff’s counsel informed Defendant that the account had been deactivated on December 15, 2011 (just one day after United confirmed that they had accessed the account from the unknown IP address) and all of the account data had been permanently lost. Plaintiff asserted that Facebook “automatically deleted” the account after it was deactivated for 14 days. Defense counsel argued that this was not Facebook’s policy and Plaintiff would have had to have taken additional steps to permanently delete the account.
The Court concluded that it was “irrelevant whether plaintiff requested that his account be deleted or merely deactivated, as either scenario involves the withholding or destruction of evidence.”
In dealing with this destruction of this evidence, the court limited its focus to an adverse inference instruction (and monetary sanctions which were ultimately denied) because they were the only sanctions Defendants requested. An adverse inference instruction, “permits a jury to infer that the fact that a document was not produced or destroyed ‘is evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.’” Scott v. IBM, Corp., 196 F.R.D. 223, 248 (D.N.J. 2000).
In determining whether to impose the adverse inference, the court relied heavily on the factors and rational from the landmark e-discovery case of Mosaid Technologies v. Samsung Electronics, 348 F.Supp.2d 332 (D.N.J. 2004). Mosaid lists the four factors that must be satisfied for the court to impose an adverse inference instruction against a party:
In this case, the court found that clearly the plaintiff satisfied the first, third, and fourth factors because Plaintiff had individual control of the account, his deactivation caused the account’s ultimate irreversible deletion, and he was aware that this information was reasonably necessary to the litigation.
When it came to the third factor, the court based its reasoning on Mosaid and stated:
“With regard to ‘actual suppression,’ the court in Mosaid is clear in finding 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.”
In this case, the Plaintiff intentionally deactivated his account nearly five months after being made aware that defendants wanted to discover its contents for the purposes of this litigation. Assuming that the account was automatically deleted after 14 days (as plaintiff asserts), plaintiff neglected to reactivate, save, or preserve the information, thus intentionally destroying the evidence.
While the plaintiff may have avoided the defendants finding damaging information from his Facebook account, this adverse instruction also significantly damages his case. If this case goes to trial, the jury can infer whatever they imagine was contained in that account that was damaging enough that the plaintiff was so scared of what it contained that he intentionally deleted it. Alternatively, even if the case ultimately settles, once the defendants know that the plaintiff will be faced with an adverse inference jury instruction, the prospects of lucrative settlement may be long gone.