In recent years, employers have become familiar with navigating social media from a human resources perspective. These same issues are now making their way through the courts, and the rulings issued can serve as guideposts for employers engaged in litigation.
A federal district court in New Jersey recently imposed sanctions on a plaintiff for deleting his Facebook account after he commenced litigation. That case, Gatto v. United Airlines Inc., began when an employee of JetBlue claimed he was injured after a United Airlines plane allegedly caused him to be struck by fueler stairs. During discovery, United requested all documents and information regarding social media accounts maintained by the plaintiff. Although the plaintiff initially refused to provide an authorization for his Facebook account, after a motion to compel, he was ordered to provide the authorization. United then logged onto his account and was able to confirm that it contained information relevant to the plaintiff’s claims. Before it could download the information, however, the plaintiff received a notification that his Facebook account was accessed by an unfamiliar IP address and deleted his account. United then moved for sanctions, and the district court ruled that the plaintiff’s deletion of his account constituted spoliation of evidence and entitled the defendant to an adverse inference instruction against him at trial.
For employers, the takeaways from this case are:
Anytime a matter is believed to have the potential for litigation, research should be conducted to determine whether the opponent has social media accounts. Preserving even the most basic information at the outset of the litigation can be critical for future discovery battles.
Do not “friend” a former employee. If you otherwise have access to their page through their settings, you may view their page, but do not send a “friend” request.
As soon as litigation seems like a possibility, send a preservation request to the opponent for all social media accounts. Even if you have not yet engaged counsel for the matter, it is wise to hire counsel even if for the limited purpose of sending a preservation equest and a general litigation hold letter.
Written discovery demands should include a request for information on social media accounts as well as a request for authorizations.
Be sure to document all communications on this matter in writing. In the event the opposing party deletes its account, courts will be more likely to impose sanctions if prior writings document the relevancy of the information sought. This includes any communications between the employer and the former employee before litigation is commenced.
Employees’ (or former employees’) social media accounts often contain information that can either prove or disprove allegations at issue in litigation. Employers should be prepared to use that to their advantage.