New Jersey Litigants Warned Not to Delete Social Media Posts

Parties to civil lawsuits may not want the other side snooping around their social media activities. However, deleting the accounts or posts may lead to more severe consequences.

In a recent New Jersey federal court decision, the court sanctioned a plaintiff for spoliation after he deleted his Facebook account. The court found that the plaintiff “had a duty to preserve his Facebook account at the time it was deactivated and deleted.”

The Facts of the Case

In Gatto v. United Airlines, the plaintiff, Frank Gatto, worked as a ground operations supervisor at John F. Kennedy Airport. His lawsuit alleged that while he was unloading baggage, a United Airlines aircraft caused a set of fueler stairs, owned and operated by Allied, to crash into him. Gatto further claimed that his injuries, which included a torn rotator cuff, a torn medial meniscus, and back injuries, rendered him permanently disabled.

During the course of discovery, the defendants requested documents and information related to Gatto’s social media accounts. After he failed to fully comply, U.S. Magistrate Judge Cathy Waldor ordered Gatto to execute an authorization for the release of his Facebook records and enable access by changing his password to “alliedunited.” The parties dispute whether they also agreed that defense counsel would be authorized to directly access the account.

After the conference, counsel for United allegedly accessed the account “to confirm the password was changed,” and printed portions of Plaintiff’s Facebook page. This triggered a Facebook notification to the plaintiff that his account had been accessed from an unfamiliar IP address in New Jersey. The plaintiff proceeded to deactivate his account, even after counsel for United confirmed that they had directly accessed the account. Facebook automatically deleted the data 14 days later.

The Court’s Ruling

As the court noted in its opinion, “Litigants in federal court have a duty to preserve relevant evidence that they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation, and the Court may impose sanctions on an offending party that has breached this duty.” Sanctions for spoliation include dismissal of a claim or granting judgment in favor of a prejudiced party; suppression of evidence; an adverse inference, referred to as the spoliation inference; fines; and attorneys’ fees and costs.

In this case, the defendants requested an adverse inference, arguing that the Facebook posts detailed physical and social activities that disputed the plaintiff’s claims and damages. In determining whether the sanction was appropriate, the court rejected Gatto’s contention that that he did not intentionally destroy evidence or violate a court order.

As explained by the court, “Neither defense counsel’s allegedly inappropriate access of the Facebook account, nor Plaintiff’s belated efforts to reactivate the account, negate the fact that Plaintiff failed to preserve relevant evidence. 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.”

The court’s decision should serve as an important reminder about litigant’s duty to preserve evidence, including information stored online. Moreover, the failure to do so can have a significant impact on the likelihood of success.

If you have any questions about this case or would like to discuss the legal issues involved, please contact me, Michael Cifelli, or the Scarinci Hollenbeck attorney with whom you work.