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Employee’s Deactivation Of Facebook Account Leads To Sanctions

The latest Facebook case highlights how courts now intend to hold parties accountable when it comes to preserving their personal social media accounts during litigation.  Recently, a federal court ruled that a plaintiff’s deletion of his Facebook account during discovery constituted spoliation of evidence and warranted an “adverse inference” instruction against him at trial.  Gatto v. United Airlines and Allied Aviation Servs., et al, No. 10-CV-1090 (D.N.J. March 25, 2013).

The plaintiff, a ground operations supervisor at JFK Airport, allegedly suffered permanent disabling injuries from an accident at work which he claimed limited his physical and social activities.  Defendants sought discovery related to Plaintiff’s damages, including documents related to his social media accounts.

Although Plaintiff provided Defendants with the signed authorization for release of information from certain social networking sites and other online services such as eBay, he failed to provide an authorization for his Facebook account.  The magistrate judge ultimately ordered Plaintiff to execute the Facebook authorization, and Plaintiff agreed to change his Facebook password and to disclose the password to defense counsel for the purpose of accessing documents and information from Facebook.  Defense counsel briefly accessed the account and printed some portion of the Facebook home page.  Facebook then notified Plaintiff that an unfamiliar IP address had accessed his account.   Shortly thereafter, Plaintiff “deactivated” his account, causing Facebook to permanently delete the account 14 days later in accordance with its policy.

Defendants moved for spoliation of evidence sanctions, claiming that the lost Facebook postings contradicted Plaintiff’s claims about his restricted social activities.  In response, Plaintiff argued that he had acted reasonably in deactivating his account because he did know it was defense counsel accessing his page.  Moreover, the permanent deletion was the result of Facebook’s “automatically” deleting it.  The court, however, found that the Facebook account was within Plaintiff’s control, and that “[e]ven if Plaintiff did not intend to deprive the defendants of the information associated with his Facebook account, there is no dispute that plaintiff intentionally deactivated the account,” which resulted in the permanent loss of  relevant evidence.  Thus, the court granted Defendants’ request for an “adverse inference” instruction (but declined to award legal fees as a further sanction).

The Gatto decision not only affirms that social media is discoverable by employers, but also teaches that plaintiffs who fail to preserve relevant social media data will face harsh penalties.  Employers are reminded to specifically seek relevant social media (Facebook, Twitter, blogs, LinkedIn accounts) in their discovery requests since such sources may provide employers with sufficient evidence to rebut an employee’s claims.  This case also serves as a reminder and a warning to employers that the principles of evidence preservation apply to social media, and employers should take steps very early in the litigation to preserve its own social media content as it pertains to the matter.

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About this Author

Helen E. Tuttle, Labor and employment lawyer, Drinker Biddle
Partner

Helen E. Tuttle defends clients in employment and business disputes, fostering expeditious, cost-effective and business-focused outcomes. She acts as a trusted advisor to her clients, offering a hands-on, responsive approach to complex matters in financial services, health care, retail, automotive and other industries. An experienced trial lawyer, Helen is prepared to handle cases through verdict and represents clients in state and federal courts, arbitrations and before agencies including the EEOC and the OFCCP.

In 2011, the New Jersey Supreme...

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Noreen Cull, Labor & Employment Lawyer Drinker Biddle
Counsel

Noreen Cull regularly defends employers in individual and class action lawsuits filed in federal and state courts, including those involving equal employment opportunity discrimination, retaliatory discharge, the Family and Medical Leave Act, workplace harassment, retaliatory discharge, whistleblower rights, the Fair Labor Standards Act and state wage and hour claims. Noreen is counsel in the firm’s Labor and Employment Practice Group based in the Chicago office.

She has significant experience representing both private and public employers in a broad range of matters relating to employment. She also has considerable experience representing employers before federal, state and local administrative agencies such as the Equal Employment Opportunity Commission (EEOC), the Illinois Department of Human Rights and the U.S. and Illinois Department of Labor. Noreen regularly counsels clients on a wide variety of employment law matters, including discipline and termination issues, workplace harassment investigations, wage and hour compliance, employee handbooks and personnel practices, employment and separation agreements, and disability and family/medical leave issues. She has lectured on various employment topics, including workplace harassment, FMLA compliance and discipline and discharge strategies.

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