By Jessica Mendelson and Grace Chuchla

Litigants ought to think twice before deleting their Facebook profiles.  Just this month, a New Jersey federal judge issued sanctions against a litigant in a personal injury case for deleting his Facebook profile after agreeing to grant defense counsel access to the profile.

In Gatto v. United Air Linesthe plaintiff, Gatto was a former ground operations supervisor at John F. Kennedy International Airport in New York.  Gatto sued as a result of injuries he allegedly incurred on the job.  Gatto claimed a set of  fueler stairs had crashed into him allegedly resulting in permanent disabilities which left him unable to work.

During the discovery phase of the case, the defendants sought discovery of Gatto’s social networking sites.  The parties agreed Gatto would provide his password to defense counsel after he had changed it.  Defense counsel subsequently logged into Gatto’s Facebook account and printed out portions of his Facebook page.  Defendants also sent a signed authorization to Facebook so that they could access the account, but Facebook objected, suggesting that defendants ask Gatto to download his own account information.

Following the defendants’ access of  his Facebook account, Gatto allegedly received notice that his account had been accessed from an unfamiliar IP address.  Gatto deactivated the account allegedly for fear it had been hacked.  This led to the deletion of the contents of the account, and defendants brought a motion for spoliation sanctions.

The court held that to issue sanctions, it needed to find four factors: “(1) the evidence was within Gatto’s control; (2) the evidence was actually suppressed or withheld by Gatto; (3) the destroyed evidence was relevant to claims or defenses in the case; and (4) Gatto should have reasonably foreseen that the evidence would be discoverable.

The court found that the first, third, and fourth factors were present.  Gatto argued that he did not intend to destroy anything, but rather, deactivated the account because he had previously been hacked, and feared it was happening a second time.  The court, however, noted that the adverse inference instruction was designed to level the playing field if one party has been prejudiced by destruction, and therefore, whether Gatto actually had intent was “largely irrelevant.” No matter his excuse, Gatto “effectively caused the account to be permanently deleted,” which rendered a spoliation inference appropriate. As such, the court permitted an instruction to be given to the jury that they may draw adverse consequences from the deletion of Gatto’s profile.

Gatto is just the most recent case on the discovery of social media and the consequences for the spoilation of such of evidence, and there will likely continue to be more in the future.  Recently, in Lester v. Allied Concrete Co.a Virginia court sanctioned a party and his lawyers in a wrongful death suit for intentionally destroying a Facebook page.  In that case, the opposing party requested discovery of the contents of the plaintiff’s Facebook page after it obtained a photo of the plaintiff wearing an  “I ♥ hot moms” T-shirt.  After the plaintiff had been questioned about the shirt at deposition, his attorney instructed him to “clean up” the account to prevent “blowups of this stuff at trial.”  The account was removed, and defense counsel was told that the plaintiff had no Facebook page.  The account was later reactivated and the contents were produced, with the exception of a number of objectionable photos.  Although the jury found in favor of the plaintiff, the court sanctioned plaintiff and his attorney for spoliation as a result of the deletion of the page.

Gatto and Lester are important as both cases suggest the changing face of discovery as a result of the prevalence of social media in today’s world.  A social media profile is by no means safe from discovery, and as a result, parties should be careful about what is being revealed online.  Parties to ongoing litigation should be careful not to delete or deactivate their accounts, as they may be fair game for discovery. Social media profiles have become the source of highly relevant and discoverable evidence and should be treated with the same preservation care that any other hard copy documents and traditional forms of electronically stored information are given during litigation.