Why Can’t We Be Friends? — Facebook Account Deletion Cause for Adverse Inference Charge

A Magistrate Judge for the United States District Court of New Jersey recently ruled that a personal injury plaintiff’s deletion of his Facebook account, after it had been the subject of a discovery request, was cause for an adverse inference against the plaintiff.

In Gatto v. United Air Lines, et al., the plaintiff claimed a permanent disability resulting from a 2008 accident in which he allegedly suffered injuries including a torn rotator cuff and torn medial meniscus.   In July 2011 during the subsequent litigation, defendants made a request for production that included a request for documents and information related to social media accounts maintained by the plaintiff.  Although the plaintiff provided some relevant authorizations, he did not authorize release of records from Facebook.  During a court conference on December 1, 2011, the plaintiff was ordered to provide an authorization for Facebook information, at which time he also agreed to change his password allowing for the defense to access his account.

The plaintiff executed the change of password on December 5, 2011 and, shortly thereafter, defense counsel accessed the account and printed some portions of the Facebook page.  Subsequently, the plaintiff received an alert from Facebook that the account had been accessed by an “unfamiliar IP address,” and the plaintiff – who claimed that his account was hacked on prior occasions in connection with contentious divorce proceedings – deactivated the account on December 16, 2011.  When defense counsel was informed of the deactivation they requested that plaintiff immediately reactivate it, however, the account could not be reactivated and data could not be retrieved because Facebook had deleted all data fourteen days after the account deactivation.  (Notably, the court observed that it appeared the plaintiff, beyond deactivating the account, must have taken additional steps to permanently delete information.)

The defense moved for an order declaring that the defense was entitled to an adverse inference charge at trial due to spoliation, and for attorney’s fees associated with the related discovery and motion practice. In addition to the procedural history concerning the attempts to obtain the discovery, the defense argued that some of the information printed from the account before its deletion contradicted the plaintiff’s disability assertions.

The plaintiff opposed the motion, largely arguing that he did not intentionally destroy or withhold evidence, and therefore there was no actual suppression of evidence required for an adverse inference.

The court rejected plaintiff’s argument, citing District of New Jersey case law holding that the culpability (or non-culpability) of the offending party is largely irrelevant.  In this matter, it was apparent that relevant evidence had become unavailable as a result of the plaintiff’s actions and that the defense had been prejudiced as a result.

Accordingly the court granted the motion, ruling that the defense was entitled to an adverse inference instruction at trial against the plaintiff for failing to preserve his Facebook account. The court declined to award attorney’s fees to the defense, concluding that the plaintiff’s destruction of evidence did not appear to be motivated by fraud or diversionary tactics.

The practice points here are: 1) social media remains a highly viable source to potentially discredit an adversary’s claims; and 2) even if the unavailability of evidence appears to have been the result of mere inadvertence of an adversary, a spoliation of evidence charge is appropriately sought when the adversary is or should be on notice of the potential relevance of the evidence, and fails to preserve it to your detriment.

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