Discovery of social-media evidence can be a valuable
tool, particularly in employment and personal-injury litigation.
Employers' lawyers should be aware not only of the potentially relevant
evidence in a plaintiff-employee's Facebook account. They also should be very
aware of the ethical implications relating to their own client's social-media
activities. One such implication is the potential spoliation of
evidence. A new decision from the U.S. District Court of New Jersey
offers an important reminder of this critical duty.
The plaintiff, a baggage handler, alleged that he was
injured when a set of feuler stairs crashed into him. He claimed that, because
of his injuries, he was permanently disabled, was unable to work, and was
limited in his physical and social activities.
During litigation, the defendants sought discovery
regarding the plaintiff's damages and social activities. Plaintiff signed
authorization forms form eBay, PayPal, and some social-networking sites but not
for his Facebook account.
At a settlement conference, the Magistrate Judge ordered
the plaintiff to execute an authorization for his Facebook account. The
plaintiff agreed to change his password so the defendants' counsel could access
the contents of his Facebook account. After the conference, the defendants' counsel
logged in and printed some of plaintiff's profile page.
As a result, the plaintiff got a notice from Facebook
informing him that his account had been accessed from an unauthorized ISP
address. According to the plaintiff, he deactivated the account upon receiving
the alert from Facebook but, 14 days later, Facebook "automatically deleted"
the account and all of its contents. Therefore, all of the contents were lost
permanently. The court ordered spoliation sanctions against the plaintiff in
the form of an adverse inference.
Now, the reality is that the plaintiff actually
deleted the account. Deactivating your Facebook account does not result in the
"automatic deletion" of the account. Apparently, the plaintiff thought that he
was deactivating it but actually deleted it.
News to me was that Facebook permanently deletes
contents of any account that is deleted and that it does so just 14 days after
the account is deleted.
Either way, this case should serve as an important
reminder to lawyers of their duty to take an active role in the preservation
and/or production of clients' social-media contents.
v. U. Air Lines, Inc., No. 10-cv-1090-ES-SCM (D.N.J. Mar. 25, 2013) [an enhanced version of this opinion is available to lexis.com
Sanctioned for Failure to Produce Social-Media Evidence
Must Turn Over Facebook Info For Harassment Claim
of EEOC Claimants' Social-Media Posts
Me, Maybe. Discovery of Employee Identities
Manager's Drunk Facebook Post Leads to Retaliation Claim
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog.
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