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.
Please stay tuned for further updates as this area of the law
continues to evolve.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
