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When Social Media is Relevant, Deleting Account May Lead to Adverse Inference Instruction

Posted on October 28th, 2013

In Gatto v. United Airlines, Inc., 2013 U.S. Dist. LEXIS 41909, No.: 10-cv-1090-ES-SCM (D.N.J. Mar. 25, 2013), plaintiff Frank Gatto was ordered to produce personal Facebook account records. The personal injury action alleged permanent disability limiting physical and social activities, so the court agreed Facebook records were relevant and discoverable. Defendants briefly had access to the Facebook records as part of the plaintiff ESI production, but plaintiff Gatto subsequently deactivated his account. Facebook permanently deleted the account after two weeks, and defendants request monetary damages and adverse interference instructions.

The court, citing Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994), used a three-point test to determine appropriate spoliation sanctions:

  1. The degree of fault of the party who altered or destroyed the evidence;
  2. The degree of prejudice suffered by the opposing party; and
  3. Whether there is a lesser sanction that will avoid substantial unfairness to the opposing party, and where the offending party is seriously at fault, will serve to deter such conduct by other in the future.

In addition, four factors must be satisfied to give an adverse interference instruction, which allows the jury to infer destroyed evidence was harmful to the party preventing production:

  1. The evidence was within the party’s control;
  2. There was actual suppression or withholding of evidence;
  3. The evidence destroyed or withheld was relevant; and
  4. It was reasonable foreseeable the evidence would be discoverable.

The court has broad discretion in awarding monetary sanctions. As it found no fraudulent purpose, no tactical diversion and no unnecessary delay caused by the Facebook account deletion, the court denied defendants’ request for monetary sanctions.

ILS – Plaintiff Electronic Discovery Experts

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