On March 25, 2013, Magistrate Judge Steven C. Mannion of the U.S. District Court for the District of New Jersey issued his opinion in Gatto v. United Air Lines, et al., No. 2:10-CV-0190 (D.N.J. March 25, 2013), and imposed sanctions in the form of an adverse inference on plaintiff for deleting his Facebook account.
Judge Mannion’s opinion is a useful guide for any company litigating an employment dispute. It demonstrates that social media is a ripe area for discovery and that employees who fail to preserve their online activities may be held accountable.
The lesson from the ruling is that employers should take aggressive steps to pursue discovery regarding relevant social media from the outset of litigation, but they also should remember to ensure that they and their managers retain any similar, relevant information.
Plaintiff, a ground operations supervisor at John F. Kennedy Airport, suffered an accident while unloading baggage and brought a personal injury suit against two airlines. Id. at 2. Plaintiff claimed that his injuries rendered him permanently disabled and limited his physical and social activities. Id.
Defendants sought discovery related to Plaintiff’s damages and his social activities, including documents related to his social media accounts. During a settlement conference, Plaintiff agreed to provide a password to Defendants for the purpose of accessing documents on Facebook. Id. at 3.
Shortly after one of the Defendants accessed the account, Plaintiff purportedly received an alert advising him that someone had accessed his account from an unfamiliar IP address. On December 15, 2011, the Defendant confirmed that it had accessed Plaintiff’s account. Id. at 5.
Nevertheless, on December 16, 2011, Plaintiff deactivated his account, and Facebook permanently deleted the data 14 days later. Id.
The Court’s Opinion
Defendants filed a motion seeking an adverse inference and monetary sanctions, contending that the Facebook account contained comments and photographs that contradicted Plaintiff’s claims. Id. at 6.
The Court found that Plaintiff’s deletion of his Facebook account satisfied the four elements necessary for an adverse inference. Id. at 7. First, Plaintiff’s Facebook account was within his control as Plaintiff had authority to add, delete, and modify the content. Id. at 8.
Second, because Plaintiff alleged that he sustained serious injuries that limited his ability to work and engage in social and physical activities, the information Plaintiff posted on Facebook after his accident was relevant to the issue of damages. Id.
Third, Plaintiff had a duty to preserve the account. It was reasonably foreseeable that Defendants would seek Plaintiff’s Facebook account in discovery; in fact, Defendants had requested it nearly five months earlier. Id.
Finally, Plaintiff actually had suppressed or withheld evidence. Id. at 9. Even if Plaintiff did not intend permanently to deprive Defendants of information, Plaintiff intentionally deactivated his account and, in doing so, caused it to be deleted. “Neither defense counsel’s allegedly inappropriate access of the Facebook account, nor Plaintiff’s belated efforts to reactivate the account, negate the fact that Plaintiff failed to preserve relevant evidence.” Id.
In light of the above, the Court found a spoliation inference appropriate. The Court, however, denied Defendants’ request for attorneys’ fees and costs because Plaintiff’s destruction of evidence “does not appear to be motivated by fraudulent purposes or diversionary tactics, and the loss of evidence will not cause unnecessary delay.” Id. at 11.
Implications For Employers
Gatto sets an important precedent for employers. It approves not only employers’ efforts to obtain discovery regarding relevant social media, but also it condemns plaintiffs’ failure to preserve such information. Importantly, Gatto signals that plaintiffs will not be permitted to shield relevant online activities from discovery and will face harsh penalties if they destroy such information.