When Duty to Preserve Meets Personal Social-Media Accounts

Bryant Bell

Here is a case where the Court ruled that the jury could draw an adverse inference against a plaintiff for his failure to preserve potentially relevant evidence. In this case it was spoliation of potentially relevant information contained on his Facebook account. Now, in my opinion, I believe that this plaintiff got the short end of the Court’s understanding and the Defendant’s counsel’s manipulation of social media as evidence.

Gatto v. United Air Lines, Inc.: Was the Baggage Handler Injured or Not?

The case, Gatto v. United Air Lines, Inc., et al., Case No. 10-cv-10909-ES-SCM (D.N.J. Mar. 25, 2013) was a personal-injury claim by the plaintiff, Frank Gatto, who was injured while unloading baggage from a United Airlines aircraft. Gatto claimed that the injuries he sustained, "rendered him permanently disabled" and limited his physical and social activities to the extent that he was no longer able to work.

United Airlines sought discovery from the plaintiff, including documents relating to his social-media accounts. The defendants sought these accounts, and the Facebook account in particular, because they believed the accounts contained comments and photographs that contradicted Gatto's allegations, including his physical and social activities, trips, and vacations, as well as evidence of online business activities.

That sums up the case, but for the Court to give an adverse inference instruction, four factors must be present:

1. That the evidence was in the party's control;
2. That there was an actual suppression of the evidence;
3. That the evidence in question was relevant to the claims at issue; and
4. That it was reasonably foreseeable that the evidence would be subject to discovery.

Access Denied

Now here is what happened. The plaintiff upon request by the Court provided his Facebook password to the defendant’s counsel.  The outside counsel made several attempts to access the plaintiff’s Facebook account in early December 2011. However, because Facebook tries to protect its member’s privacy if several log-in attempts are made from unrecognized devices or IP addresses, Facebook will lock the account. If the account owner doesn’t respond, Facebook deletes the account.

When notified by defendant’s counsel that they could not access the account, the plaintiff agreed to download his entire Facebook account and provide it to the defendants.  However, the Facebook account had been deactivated on December 16, 2011, and account data was permanently lost as a result of plaintiff’s failure to cure the deactivation in a timely manner. Now, I can argue that the defendant’s counsel is mostly to blame for this accidental deletion of information. Why? Because they were most likely banging away at the Facebook account from not one device, but several. This causes Facebook to go on high alert and lock the account. And this is something that the plaintiff didn’t have much control over, especially if he had turned over the passwords to the defendant’s counsel.

So how did the plaintiff get the short end of this tech blunder? Well, the Court, found that the first factor required was satisfied, as Gatto’s Facebook account was clearly within his control. 

Failure to Preserve? 

Now, wait a second. All the data that you post on Facebook is on Facebook’s servers and manipulated by their apps and software. Just because he has a password doesn’t mean he is in control. The plaintiff gave the password to defendant’s counsel so, by this definition, didn’t they have control? I think that the Court made a mistake on this point, probably based on some clever arguments that played off the judge’s lack of social-media technology knowledge.

The Court also found the third and fourth factors were satisfied. This was because the pictures and posts on his Facebook page were relevant to the litigation, for they would support or dispute any potential damages awarded, and that plaintiff was on notice that the defendant sought access to his Facebook account, thus imposing a duty to preserve the account.

I agree that social media has the potential to contradict your claims, so I agree that it is potentially relevant and that the plaintiff had a duty to preserve. Now here is where I have a question: Isn’t the duty that one must take reasonable efforts to preserve? I think that when the plaintiff handed over the keys to his Facebook account to the defendant’s counsel, he believed he was doing the right thing and making a reasonable effort.

So now let’s look at the second factor that must be present. Was there actual suppression of the evidence? I don’t think so. The plaintiff may have been reluctant to hand over his Facebook information and I hope his attorney argued against it based on the personal nature of Facebook. The fact is, the plaintiff did hand over the passwords to the defendant. Now because the opposing counsel locked themselves out of Facebook because they were banging away on it, can we really say that the plaintiff suppressed evidence?

The real lesson here is to be smart about what you post on a public forum. You might think that it is your private account for you to rant and rave, but it is a public forum. On the other hand, if you want to collect potential evidence from Facebook and you have been granted the ability to do so, make sure you know what you are doing or consult with someone that does.