Top 5 Ediscovery Case Summaries – May 2013: New Jersey - Sanctions Granted for Social Media Spoliation

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Gatto v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J. Mar. 25, 2013).

In this personal injury dispute, the defendants sought spoliation sanctions arising out of the plaintiff’s destruction of relevant social media evidence. Despite complying with a court order mandating the plaintiff to change his Facebook password to allow the defendants counsel to access the plaintiff’s social media account, the plaintiff deactivated his Facebook account after receiving an alert from Facebook that his account was being accessed by an unfamiliar IP address in New Jersey. The parties disputed over exactly how the information on the account was permanently deleted (“as noted by the defendants, the procedures for deactivating versus permanently deleting a Facebook account are not identical”), however, the court found it sufficient that any “scenario involves the withholding or destruction of evidence.” The court stated that spoliation occurs wherever a party fails to “preserve property for another’s use in pending or reasonably foreseeable litigation.” Assessing whether an adverse inference instruction was appropriate, the court found three of the four factors clearly favored the defendants: the plaintiff was in control of the social media account, the evidence was potentially relevant to damages and it was reasonably foreseeable that the evidence would be discoverable. Regarding the second factor, which requires “actual suppression or withholding of evidence,” the court found that plaintiffs deactivation of the account was sufficient. The court granted the defendants’ request for an adverse inference instruction.