Deactivating Your Facebook While in Litigation May Be Destruction of Evidence


TAKEAWAY: Deactivating your Facebook account while in litigation may be destroying evidence that could be sanctioned by the court for spoliation of evidence.

In Gatto v. United Air Lines, Inc., et al., 2:10-cv-01090 (D. NJ Mar. 25, 2013), the district court entered an order finding that the Defendants would be entitled to an instruction at trial permitting the jury to draw an adverse inference against the Plaintiff for failing to preserve his Facebook account. The relevant facts regarding this issue are straightforward.

Plaintiff sued Defendants for personal injuries that occurred while he was working, claiming he could no longer do certain activities, no longer work, etc. The Defendants requested information from Plaintiff’s social media accounts in discovery (which is standard course these days) and Plaintiff produced quite a bit of the information from accounts other than his Facebook. He did not provide the requested information from his Facebook account. The parties engaged in quite a bit of fighting over the Facebook account and, just before all of the contents were ordered to be turned over, Plaintiff just so happened to (accidentally, of course) deactivate his Facebook account. Unfortunately–of course–by the time news traveled from lawyers to Plaintiff and back to lawyers, well, over 14 days had elapsed since the account was deactivated and it was now permanently deleted — bye bye Facebook account and everything in it!

Defendants then sought sanctions against Plaintiff for “spoliation of evidence” and sought their costs, attorneys fees, and a spoliation inference for the jury. The court agreed there was spoliation:

Spoliation occurs where evidence is destroyed or significantly altered, or where a party fails to “preserve property for another’s use as evidence in pending or reasonable foreseeable litigation.” Litigants in federal court have a duty to preserve relevant evidence that they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation, and the Court may impose sanctions on an offending party that has breached this duty.”

The court stated in no uncertain terms that it was irrelevant whether Plaintiff requested that his account be deleted or merely deactivated because either scenario involved the withholding or destruction of evidence. “[I]t is beyond dispute that Plaintiff had a duty to preserve his Facebook account at the time it was deactivated and deleted.” The court provided a very thorough analysis of the spoliation issue (i.e., you should read the full opinion) and ultimately determined that the appropriate sanction was a spoliation inference.

Now, was this scintillating little blurb enough to make you want to go and read the opinion?


Shawn Tuma (@shawnetuma) is a business lawyer with an internationally recognized reputation in cybersecurity, computer fraud and data privacy law. He is a Cybersecurity & Data Protection Partner at Scheef & Stone, LLP, a full-service business law firm in Texas that represents businesses of all sizes throughout the United States and, through its Mackrell International network, around the world.

9 thoughts on “Deactivating Your Facebook While in Litigation May Be Destruction of Evidence

  1. It’s the same as data on a hard drive or paper files, I would think. Data’s data, regardless of media. Or am I just being overly practical again?
    (Sorry for the delay in responding, I took a bit of an electronic vacation for about 6 weeks. Had to clean the bats outta my belfry, figuratively speaking – as opposed to my absence last spring, when I was helping the church across the street LITERALLY clean the bats out of THEIR belfry! 🙂 )

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