Of Course You Shouldn’t Give Opposing Counsel Your Facebook Password, And Then Delete The Account
By IT-Lex Intern Joey Chindamo (LinkedIn)
Spoliation, or the intentional alteration or destruction of evidence, is a dirty word for many modern-day litigators. Lawyers cringe at the thought of clients destroying evidence because of the hefty sanctions judges can levy against clients and lawyers alike. But in the era of eDiscovery and social media, that fear can become even more pronounced. To illustrate, we look at a recent case from the U.S. District Court for the District of New Jersey.
In Gatto v. United Air Lines, Inc., the Plaintiff filed a personal injury suit against United Air Lines and Allied Aviation Services, Inc. Gatto alleged he suffered injuries when, while unloading baggage as a ground operations supervisor for JetBlue, a set of fueler stairs crashed into him. The alleged injuries included a torn rotator cuff, a torn medial meniscus, and back injuries. Gatto claimed the injuries left him permanently disabled, limiting his physical and social activities and leaving him unable to work.
Defendant United Airlines sought discovery related to Gatto’s social activities, filing a request for production on July 21, 2011 for documents and other information related to Gatto’s social media accounts and online business activities. Defendant Allied Aviation Services joined the discovery request by July 27, 2011.
Gatto complied with the discovery request on November 21, 2011, turning over authorizations for the release of information for some social networking websites, eBay, and PayPal. But interestingly, Gatto did not include Facebook in his list of authorizations. Not surprisingly, the defendants were unsatisfied and again requested Gatto’s Facebook records during a settlement conference on December 1, 2011.
This is where the lawsuit takes a strange turn. At that same settlement conference, the judge ordered Gatto to authorize the release of Facebook documents and information, and Gatto agreed. In fact, he went so far as to change his Facebook password to “alliedunited” on December 5, 2011. Soon after, the lawyers for United accessed Gatto’s Facebook account and printed portions of it. This prompted a Facebook notification for Gatto that his account had been accessed by an unfamiliar IP address, and by December 16, 2011, Gatto had deactivated his Facebook account. Counsel for United asked Gatto to reactivate his account, but by then, Facebook had automatically deleted the account. This led to the motion for spoliation sanctions.
Gatto’s primary argument for deactivating his Facebook account seemed inconsistent with his prior behavior. He had already responded affirmatively to the defendants’ motion to produce and authorized access to his social networking accounts. But when it came to Facebook:
“While the parties dispute whether it was agreed that defense counsel would directly access Plaintiff’s Facebook account, the parties do not dispute that the password was provided to counsel for the purpose of accessing documents and information from Facebook.
. . .
Similarly, Plaintiff alleges that ‘assurances were given by Counsel for the Defendants at the December 1, 2011 conference that there would not be unauthorized access to the Facebook account online,’ whereas Defendants allege that there were no assurances given that the account would not be accessed.” (emphasis added).
This is supported by the fact that Gatto changed his password to “alliedunited,” an ironic choice if he never intended the password change to help the defendants to access his account. Moreover, since he had already authorized access to his other social networks with the knowledge they would be accessed by opposing counsel, could he really, in good faith, argue that Facebook would be treated differently?
The court’s analysis turned on whether or not Gatto’s deactivation was an “actual suppression or withholding of evidence.” Finding it indisputable that Gatto had intentionally deactivated his Facebook account—he had conceded as much—the court extended its rationale. Since Gatto had failed to reactivate his account, Facebook’s automatic deletion policy erased all data after 14 days. The court found that Gatto’s intentional deactivation caused the account to be permanently deleted:
“Neither defense counsel’s allegedly inappropriate access of the Facebook account, nor Plaintiff’s belated efforts to reactivate the account, negate the fact that Plaintiff failed to preserve relevant evidence. As a result, Defendants are prejudiced because they have lost access to evidence that is potentially relevant to Plaintiff’s damages and credibility.” (emphasis added).
The court held that a spoliation inference would be issued in the case but declined to award fees or costs for the spoliation. Gatto and his counsel got off lightly here. We talked earlier this year about a case in which both the attorney and the client were sanctioned to the tune of hundreds of thousands of dollars for erasing photographs from a Facebook page.
Remember—if there is reasonably foreseeable litigation on the horizon, any deletions of social media data may result in spoliation sanctions. Either clean up those accounts now, well before litigation has the possibility of arising, or don’t do it at all.