As we discussed in our previous post regarding the Christou case, social media is discoverable – and consequently subject to a litigation hold. From an evidentiary standpoint, social media is not without its shortcomings, and it is important to understand that social media is vulnerable to irretrievable loss, through the acts of the account holder to delete the account, through malware and hacking, through the website administrator’s inadvertent error, or dozens of other possibilities. A recent case out of New Jersey, Gatto v. United Air Lines, highlights this vulnerability and the sanctions which arise from such irretrievable losses of potential evidence.
The plaintiff in Gatto was a baggage handler at JFK airport who suffered serious injuries that left him paralyzed. As part of their discovery, the defendants requested to look at the plaintiff’s social media accounts to evaluate the impact that his injury had on his lifestyle. The plaintiff authorized the defendants to access his social media accounts, except Facebook, which access was later granted in a pre-trial settlement conference.
The defense team briefly accessed the defendant’s Facebook account before the defendant deactivated the account. The plaintiff testified that he deactivated the account after having received multiple alerts regarding unfamiliar computers accessing the account. Roughly a month later, after a failed appeal for reactivation directed at Facebook itself, plaintiff’s counsel agreed to reactivate the account. However, both parties quickly discovered that the account had been “automatically deleted” fourteen days after deactivation.
The court did not find malice in the plaintiff’s actions, although the defense team provided evidence that the plaintiff would have had to take deliberate action to permanently delete his account. Because of the lack of malice, although the judge did grant the plaintiff’s adverse inference instruction, the court declined to levy any economic sanctions on the plaintiff.
The permanent deletion of a social media account is no different from burning potentially incriminating files, except that it can be done in a matter of seconds and is virtually impossible to tell whether it was done with or without malice.