District of New Jersey Doesn’t “Like” Deletion of Facebook Account
On March 25, 2013, the District of New Jersey ordered spoliation sanctions against a Plaintiff who deleted his Facebook account during the course of discovery, although the Court stopped short at awarding attorneys’ fees and costs. Gatto v. United Air Lines, Inc., et al., 10-CV-1090-ES-SCM. A copy of the decision may be obtained here.
Plaintiff, a supervisor at John F. Kennedy Airport, was injured at work. During the course of discovery, the defendants sought to obtain access to Plaintiff’s Facebook account, which they claimed contained material relevant to his claims. Plaintiff provided the defendants with an authorization for his Facebook account, and, on order from the Court, changed his password, presumably to allow the defendants’ counsel access. Shortly thereafter, however, the plaintiff deleted his Facebook account, and all data contained within it was automatically deleted by Facebook.
The defendants filed a motion for spoliation sanctions, which the Court granted. While there were factual issues as to whether the plaintiff intentionally deleted his account to prevent the defendants’ counsel from accessing his Facebook page, the Court held that ultimately the plaintiff had a duty to preserve his account, and that the deletion of the account merited an adverse inference, as the loss of the plaintiff’s Facebook account prejudiced the defendants. The Court, however, denied the defendants’ request for attorneys’ fees and costs, noting that it did not appear that the plaintiff had acted pursuant to a fraudulent purpose.
There has been very little case law out of New Jersey, as compared to states such as New York or Pennsylvania, regarding the pursuit of discovery related to social media. This case should serve as a warning to all litigants, and a reminder that the rules of discovery, including the duty to preserve electronically-stored information, apply to social media accounts.