In Gatto v. United Air Lines, Inc., the U.S. District Court for the District of New Jersey issued one of the first sanctions against a party who deleted his Facebook account during the course of discovery.

Gatto, who worked for JetBlue Airways Corporation at John F. Kennedy International Airport, sued United Air Lines and Allied Aviation Services, Inc. after an aircraft owned and operated by United caused a set of fueler stairs, owned and operated by Allied, to crash into him while he unloaded baggage on January 21, 2008. He claimed that he suffered injuries that rendered him permanently disabled, causing him to limit his physical and social activities. He also asserted that he has been unable to work since July 2008.

In July 2011, United and Allied requested discovery of documents and information related to Gatto’s social media accounts. On December 1, 2011, the court ordered Gatto to execute an authorization for the release of documents and information from Facebook. Gatto agreed to change his password to “alliedunited.” He changed his password on December 5 and shortly thereafter, United’s attorney logged onto his account and printed portions of his Facebook page. On December 9, Gatto’s attorney e-mailed defense counsel and indicated that his client received an alert from Facebook that someone accessed his account from an unfamiliar IP address in New Jersey. Counsel for United responded on December 15 that they had accessed the Facebook page. They also advised that they had sent the authorization and a subpoena for the entire contents of the account to Facebook.

In response to the subpoena, Facebook objected to providing information under the Federal Stored Communications Act. Facebook recommended that the account holder download the account’s entire contents. During a court conference on January 6, 2012, Gatto’s counsel confirmed that his client would be willing to download the account information and provide a copy to the parties with a certification that the data had not been modified or edited since the December 1, 2011 court conference.

On January 20, 2012, Gatto’s counsel advised United and Allied that his Facebook account was deactivated on December 16, 2011 and all of his account data was lost. United’s counsel requested that he immediately reactivate his account. However, pursuant to Facebook’s corporate policy, account data is automatically deleted 14 days after deactivation. Gatto’s Facebook data was gone forever.

United and Allied sought sanctions for spoliation, which occurs where evidence is destroyed or significantly altered, or where a party fails to preserve property for another’s use as evidence in litigation that is pending or reasonably foreseeable. The court concluded that there was indeed spoliation. As a sanction for Gatto’s spoliation, the court ruled that it would instruct the jury that it may draw an adverse inference against Gatto due to his destruction of evidence. The jury would be able to infer that the fact that Gatto deleted his Facebook account is evidence that he did so out of the well-founded fear that its contents would harm him. The court declined to impose monetary sanctions.

In reaching its decision, the court noted that Gatto’s Facebook account was clearly relevant to the litigation because he:

"alleges to have sustained serious injuries in this personal injury action, and further alleges that said injuries have limited his ability to work and engage in social and physical activities. The Facebook information sought by defendants focused upon posts, comments, status updates, and other information posted or made by [Gatto] subsequent to the date of the alleged accident, as such information would be relevant to the issue of damages."

This decision highlights the importance of social media in ongoing litigation. Employment defense attorneys should seek social media information from plaintiffs claiming physical or emotional distress early on in litigation. They should also use this decision to reinforce the necessity of documents and information related to social media.

Employers should be mindful that they too are subject to the same sanctions if they fail to preserve potentially relevant information in social media accounts. Once a lawsuit is pending or reasonably foreseeable, deletions from corporate social media accounts or the personal accounts of the managers or supervisors involved in the litigation may constitute spoliation. Litigation hold notices should be updated to advise those in the control group that they should not delete anything related to the lawsuit from their social media posts.