No, You Can’t Deactivate Your Facebook Account When Litigation Is Pending

A federal magistrate judge in New Jersey recently sanctioned a plaintiff for evidence spoliation after he deactivated his Facebook account during litigation, resulting in its permanent deletion by Facebook after 14 days passed.  The court’s order confirms that social networking accounts are just like any other form of evidence and are subject to the same preservation obligations.  Parties who fail to preserve evidence contained in their social networking accounts when litigation is pending or anticipated do so at their peril.

For months, the defendants had sought information about the plaintiff’s social networking activities because they might shed light on the effects of the personal injuries claimed by the plaintiff.  The plaintiff created a new Facebook password and provided it to defense counsel to permit access to the account.  After learning that a third party had accessed his Facebook account, the plaintiff deactivated the account.  Facebook automatically deleted the account 14 days later.  The plaintiff contended that he terminated the account because he was involved in contentious divorce proceedings and his account had been repeatedly “hacked into” before his personal injury lawsuit.

The defendants requested that the court impose issue sanctions on the plaintiff because the Facebook account would have included information about the physical and social activities that the plaintiff engaged in.  The court granted the sanctions, concluding that the plaintiff’s deactivation of his Facebook account constituted evidence spoliation.

Applying existing Third Circuit case law, the court ruled that the Facebook account was clearly within plaintiff’s control, that it was relevant to the claims or defenses at issue, and that it was reasonably foreseeable that the evidence would be discoverable—particularly since the Facebook account had been requested in discovery five months before.

According to the court, the only significant question was whether there was “actual suppression or withholding of evidence.”  The court rejected the plaintiff’s contention that deactivating the account was reasonable after he learned that an unknown third party had accessed the account, and considering that the account had been previously hacked.  The court also rejected the plaintiff’s contention that the deletion of Facebook data was accidental because Facebook “automatically” deleted the account after 14 days.

The court concluded that the plaintiff had violated his obligations to preserve relevant evidence and granted the defendants’ request for a jury instruction that the jurors may draw an adverse inference against the plaintiff for his failure to preserve the Facebook account.

The order, entered in Gatto v. United Air Lines, Inc. (No. 10-cv-1090-ES-SCM), can be found here.