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Deleted Facebook Account: Misunderstanding or eDiscovery Spoliation?

Posted on April 8th, 2013

In the case Gatto v. United Air Lines, Inc., Civil Action No.: 10-cv-1090-ES-SCM (N.D.N.J. March 25, 2013), the court entered an order on the defendant’s Motion for Sanctions in a personal injury case.

The defendants requested information from Gatto’s social media accounts as part of the plaintiff ESI production, served on July 21, 2011. On November 21, 2011, the plaintiff gave defendants authorization to access information on his social media sites and other online accounts. However, he did not submit an authorization for Facebook.

On December 1, 2011, the magistrate judge heard the dispute regarding the Facebook account, and she ordered plaintiff to grant the Facebook authorization. The parties agreed plaintiff would change and provide a new password to defendants that day.

The password was changed on December 5, 2011. Facebook then alerted the plaintiff that his account was being accessed by an unfamiliar IP address in New Jersey (the defendant’s attorney.) The parties then disagreed on whether the new password was provided so the defense had unfettered access, or if the new password was simply for the authorization for the information to be provided by Facebook directly.

On January 6, 2012, both counsel met with the magistrate judge, as plaintiff indicated he had not agreed to the defendant’s attorney directly accessing the account. The magistrate judge ordered the plaintiff to print off the entire contents of the site and deliver it to defendant, on the condition that he stipulate no changes or alterations had been made since December 1, 2011.

On January 20, 2012, plaintiff’s counsel informed the defendants that the account had been deactivated on December 16, 2011, after the notice was sent that an unfamiliar IP address accessed the account. Also, Facebook’s policy is to completely delete any accounts 14 days after deactivation, which meant the electronic data was lost completely.

If you are wondering why Facebook did not simply provide this information, the company was subpoenaed but objected on grounds of the Stored Communications Act. It was Facebook’s attorney, in fact, who suggested that the account holder download the contents of the account to deliver to defendant.

So did the court rule in favor of defendant, finding plaintiff acted in bad faith by deleting the account? Or was this a mere misunderstanding, not worthy of sanctions? Our discussion of Gatto on our next blog!

ILS – Plaintiff eDiscovery Experts

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