As we have warned our readers in the past, it is important to be vary of what you post on social media accounts. However, people often assume that this warning only applies to people that make their social media profiles publicly accessible – not true. A judge can order you to turn over your login information so that the adverse party may have access to all of your posts – even things you haven’t shared with anyone else.
Furthermore, if you attempt to delete your account information, the judge or jury may draw a negative inference about what kind of evidence may have been on the account. This is exactly what happened in Gatto v. United Air Lines, Inc., 2013 U.S. Dist. LEXIS 41909, (D.N.J. Mar. 25, 2013). Gatto brought a suit against United Air Lines, alleging that he had been injured on the job at John F. Kennedy International Airport when a set of stairs fell on him. He contended that the injuries he sustained as a result of the accident rendered him permanently disabled, extremely limiting his physical and social activities.
During pre-trial discovery, the defendants requested documents pertaining to all of the social media and online business accounts Gatto had created. They argued that evidence of his alleged severe disability could be refuted by posts from his social media accounts. The judge agreed, and Gatto handed over his PayPal and eBay account information, but unsuccessfully challenged the request for his Facebook account information. A judge ordered that he change the password to “allunited.” Defense counsel logged into the account directly, allegedly to confirm that the password had been changed, and printed some information. Gatto then received a notification from Facebook that his account had been accessed by an unrecognized IP address in New Jersey.
After a failed attempt to subpoena all of the contents of Gatto’s Facebook page from Facebook, the parties came to an agreement that Gatto would download all of the content from his page and provide it to the defense, along with a certification that he had not altered or omitted information. However, when it came time to provide the information, Gatto claimed he was unable to access any of the contents of his page. He revealed that he had deleted his facebook page in its entirety after he received notification about a strange login. And, because two weeks had passed since he deleted the account, the account was completely wiped out and Facebook was unable to recover it.
The court noted that:
An adverse inference, or ‘spoliation 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.
And that, in order to grant an adverse inference instruction:
the Court must find that four factors are satisfied: (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.
Gatto argued that he had been going through a divorce, and his wife had been logging into his account without his permission, so he decided to deactivate it. Furthermore, he had not received confirmation that the log in was from the defense until after he had deleted the account. The court was unconvinced. They concluded:
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. . . . As a result, Defendants are prejudiced because they have lost access to evidence that is potentially relevant to Plaintiff’s damages and credibility. In light of all of the above, a spoliation inference is appropriate.
Although Gatto dealt only with a litigant’s Facebook account, the rule of law presumably applies to all forms of social media, including but not limited to: Instagram, Twitter, LinkedIn, Vine, Reddit and blogs. And while Gatto was a personal injury case, this rule of law is applicable in many family law cases. For instance, a litigant in a divorce case might insist that they are disabled and cannot return to work or afford to pay their spouse alimony, but their Facebook profile may contain evidence of them skiing, surfing and playing basketball. Or, a spouse may contend that they cannot fulfill their parenting time obligations due to a month long business trip, while their twitter timeline is full of pictures and tweets from a vacation, not a work trip.
The moral of the story? Be careful of what you post, and you if do post it, don’t delete it!