A United States Magistrate Judge recently held that a plaintiff had a duty to preserve his Facebook account and that his deletion of it warranted an “adverse inference” jury instruction for failing to preserve it.

In Gatto v. United Air Lines, Inc. and Allied Aviation Services, Inc., the defendants sought discovery related to the plaintiff’s social activities, and made a document request for “documents and information related to social media accounts maintained by Plaintiff.” The parties also discussed the plaintiff’s Facebook account during a settlement conference. Accordingly, when the plaintiff subsequently deactivated his Facebook account, causing it to be permanently deleted by Facebook 14 days later, it led the defendants to request sanctions.

The Court approached the sanctions motion as it would any other involving alleged spoliation of evidence, ultimately holding that: “Plaintiff’s Facebook account was clearly within his control”; it “was relevant to the litigation”; “it is beyond dispute that Plaintiff had a duty to preserve his Facebook account at the time it was deactivated and deleted”; “[e]ven if Plaintiff did not intend to permanently deprive the defendants of the information associated with his Facebook account, there is no dispute that Plaintiff intentionally deactivated the account”; and that the defendants were “prejudiced because they have lost access to evidence that is potentially relevant to Plaintiff’s damages and credibility.” Accordingly, the Court granted the defendants’ request for an “adverse inference” jury instruction due to the plaintiff’s failure to preserve his Facebook account.

With the exponential growth of social media use by employees, employment disputes will increasingly involve social media. This particular case illustrates not only that well-established principles of evidence preservation apply to social media, but that counsel should specifically include social media in discovery requests.

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