Wednesday, April 17, 2013

Does Deletion of Facebook Profile Equal Spoliation of Evidence?

According to a recent March 29, 2013 New Jersey Law Journal article by Mary Pat Gallagher entitled "Party's Deletion of Facebook Page Ruled Spoliation of Evidence," New Jersey Federal U.S. Magistrate Judge Steven Mannion sanctioned a personal injury plaintiff under the spoliation doctrine in the case of Gatto v. United Airlines, 10-CV-1090 (D.N.J. 2013) for deleting his Facebook page during a pending case.

According to the article, the plaintiff was a baggage handler at JFK Airport in New York City who was injured at an accident at work when struck by a set of mobile stairs.  The article reported that the plaintiff deleted his Facebook account while the defendants were trying to access it during the course of discovery.

The article reported that the judge ruled that the plaintiff "had a duty to preserve his Facebook account at the time it was deactivated and deleted" and that the defense would be prejudiced by the destruction of this loss of the evidence.

The judge declined a request for attorney's fees and ruled that the appropriate sanction under the circumstances would be an adverse inference jury instruction, i.e., an instruction to the jury essentially that the jury may infer that, if this evidence was available, it would have been detrimental to the plaintiff's claims. 

Here is a LINK to the Gatto decision online.

CommentaryThe Gatto decision represents yet another example of courts applying the same old rules to new circumstances.  While there is a lot of uncertainty with novel issues being raised in areas such as Facebook Discovery and even in the Post-Koken context, the courts confirm time and time again that the same Rules of Civil Procedure and Discovery will simply be applied to these new questions in a straightforward manner.  Realizing this may assist litigants in predicting how such issues may play out if raised.

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