As websites like Facebook and Twitter grow in usage, litigators increasingly seek discovery of content from social media, as allowed by statutes and case law, for relevant electronically stored information. The uptick in the request for, and production of, social media information – coupled with the ease with which a party can delete or destroy it – may pose a risk that parties will spoliate relevant evidence after litigation arises. However, as with other electronically stored information, parties that are proven to have destroyed relevant evidence may face severe sanctions.

The Spring 2013 Kramer Levin Electronic Discovery Update addressed the increasing use of social media information as evidence in trials. This article looks further at spoliation of social media evidence and the remedies afforded by the courts to the innocent parties seeking discovery, as seen in the New Jersey district court case Gatto v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J. Mar. 25, 2013) (“Gatto”) and the Virginia state case Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) (“Lester”).

Gatto v. United Air Lines, Inc.

In Gatto, plaintiff brought a personal injury claim against airline defendants after they allegedly “caused a set of fueler stairs . . . to crash into” plaintiff. Gatto, 2013 WL 1285285 at *1. Defendants sought information as to his social activities that would contradict plaintiff’s claim that he was unable to work after the accident. Id. A New Jersey federal magistrate judge ordered plaintiff to provide the defendants with his Facebook account name and password to facilitate discovery. Id. Counsel for defendants accessed the Facebook account, triggering a notification to plaintiff that his account had been accessed by an unfamiliar IP address. Id. at *2. Defendants subsequently sought to acquire all the information from the account directly from Facebook. Id. Facebook instructed defendants to have plaintiff download his information and give a copy to them, to which the parties allegedly agreed. Id. Just fourteen days later, however, plaintiff’s counsel informed defendants that the information was no longer available because plaintiff had deactivated his Facebook account shortly after defendants had made the discovery request, allegedly in response to the notification that it had been accessed by an unfamiliar IP address. Id. As a result, defendants were unable to obtain discovery from plaintiff’s Facebook account.

The court awarded the sanction of an adverse inference instruction to the jury. Id. at *4. The court found that defendants had met the four elements required for finding spoliation under New Jersey case law: (1) the Facebook account was within plaintiff’s control “as plaintiff had authority to add, delete, or modify his account’s content”; (2) plaintiff either intentionally or accidentally suppressed the Facebook evidence; (3) the evidence suppressed was relevant to damages because the “information sought by defendants focused upon posts, comments, status updates, and other information posted or made by the plaintiff subsequent to the date of the alleged accident”; and (4) “it was reasonably foreseeable that plaintiff’s Facebook account would be sought in discovery” as defendants had requested the information multiple times, including at a Settlement Conference where plaintiff was present fifteen days before plaintiff deactivated his account. Id. at *3-4. The court expressed skepticism over whether plaintiff merely deactivated his account or if he took further steps to permanently delete his profile, noting that “the procedures for deactivating versus permanently deleting a Facebook account are not identical.” Id. at *2 n.1. The court did not grant monetary sanctions to defendants, however, finding that the suppression of the contents of the Facebook account did not “appear to be motivated by fraudulent purposes or diversionary tactics.” Id. at *5.

Allied Concrete Co. v. Lester

In Lester, plaintiff sued defendant after one of its drivers crashed into plaintiff’s car, injuring plaintiff and killing his wife. Lester, 736 S.E.2d at 701. Defendant sought discovery of plaintiff’s social media accounts to rebut the alleged impact of the crash on plaintiff. Plaintiff’s Facebook page contained photographs that cast him in a negative light, which defendant’s counsel (apparently under permissible circumstances) was able to briefly access. Id. at 702. Among sixteen compromising photographs was one depicting plaintiff “holding a beer can while wearing a T-shirt emblazoned with ‘I ♥ hot moms’,” a picture that was potentially damaging to plaintiff’s claims for damages resulting from his wife’s death. Id. The very next morning after receiving the discovery request, plaintiff’s attorneys instructed plaintiff: “[w]e do NOT want blow ups of other pics at trial so please, please clean up your [F]acebook and [M]yspace!” Id. Plaintiff first deactivated his Facebook account, then reactivated it and deleted the sixteen pictures. Subsequently he stated in a deposition that he had not deactivated the account. Id. In further discovery proceedings to identify what evidence plaintiff had suppressed, plaintiff’s attorney “intentionally omitted” any mention of the email instructing plaintiff to “clean up” his Facebook account. Id. at 703.

The trial court granted an adverse inference instruction against plaintiff, telling the jury to “presume that the photograph or photographs [plaintiff] deleted from his Facebook account were harmful to his case.” Id. The trial court read the adverse instruction to the jury twice: “once while Lester was testifying and again before the closing arguments.” Id. Despite the instruction, the jury awarded plaintiff $8,577,000. Id. at 701. Given the deceptive conduct and intentional nature of plaintiff’s suppression, however, the court awarded defendant $722,000 in sanctions , with $542,000 due from plaintiff’s counsel and $180,000 due from plaintiff. Id. at 703.


Gatto and Lester are the latest decisions in a growing body of case law holding that courts may apply sanctions as a consequence for the spoliation of social media evidence. It is prudent for parties to understand the potential relevance of social media evidence in certain types of cases and to avoid culpable destruction of relevant data once litigation is reasonably anticipated. Courts increasingly have demonstrated that they will treat the preservation of social media information in the same manner as they do other forms of electronically stored information.