Serious Sanctions Imposed for Deleting a Facebook Account

A New Jersey federal judge recently ruled that a plaintiff’s deletion of his Facebook account amounted to the sanctionable destruction of evidence. This decision has major implications on social media discovery in all litigation. Some (Law360 – subscription required) experts believe that this result proves that “social media access is fair game in litigation and that workers who try to conceal their online lives will pay a high price.”

In Gatto v. United Air Lines, Inc., the plaintiff sought damages arising from personal injuries allegedly sustained while working at the J.F.K. Airport in New York. During the discovery phase of litigation, the defendants served interrogatories and document requests targeting the plaintiff’s social activities, including the social media accounts maintained by the plaintiff. Following an order compelling production of his Facebook account, the plaintiff notified the defendants that he had deleted his account. Defendants’ motion for sanctions followed.

U.S. Magistrate Judge Steven C. Mannion granted the motion, concluding that the deletion of the account constituted spoliation. The judge also held that the defendants were entitled to an instruction at trial that the jury may draw an adverse inference against Gatto for intentionally destroying evidence.

Sure, this decision is in the context of personal injury litigation but the import applies to most disputes, both pre-suit and those in active litigation. Social media content is often relevant in employment disputes, personal injury matters including claims of emotional distress, defamation claims, and many professional liability contexts. So, it is likely that parties in these scenarios are entitled to access personal accounts. The opposite is also true: destruction of social media content constitutes spoliation of evidence. Given that there is no sign that social media popularity is declining, and parties will continue to publish their unsolicited thoughts to a wide audience, defense counsel should add social media to their discovery check list.