A New Jersey federal court recently held that an adverse inference instruction should be given to a jury because a personal injury plaintiff failed to preserve his Facebook account. In Gatto v. United Air Lines, Inc., 2013 U.S. Dist. LEXIS 41909 (Mar. 25, 2013), plaintiff allegedly sustained a number of injuries after an aircraft crashed into him while he was unloading baggage. Defendants sought discovery related to plaintiff’s damages, including his social media activities. After a magistrate judge ordered Plaintiff to authorize the release of information from his Facebook account, plaintiff deactivated his Facebook account resulting in all of his account data being lost. The parties disputed whether plaintiff’s deletion was accidental.

The court applied a four factor test to determine whether an adverse inference instruction should be given to the jury. An adverse inference instruction permits a jury to infer that a document that was not produced or that was destroyed is evidence that the party prevented production out of the well-founded fear that the contents would harm him. The court held that the test was satisfied because: (1) the evidence was within plaintiff’s control; (2) there was an actual suppression or withholding of evidence; (3) the evidence that was destroyed or withheld was relevant to the claims or defenses; and (4) it was reasonably foreseeable that the evidence would be discoverable. The court denied defendant’s motion for sanctions, holding that plaintiff’s destruction of evidence did not appear to be motivated by fraudulent purposes or diversionary tactics.

With the growing use of social media, discovery requests for Facebook, Twitter and other social media accounts are becoming more common place. The Gatto decision indicates that courts will not excuse plaintiffs for failing to preserve these accounts. Employers involved in employment disputes should seek discovery regarding social media from plaintiffs at the earliest possible time.