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District Of New Jersey Orders Spoliation Sanctions For Deletion Of Facebook Account

April 4, 2013 • Posted By Karen M. Mahon • Trial Practice

While the caselaw on this topic in New York is plentiful, New Jersey has produced very little caselaw regarding the pursuit of discovery related to social media.  However, on March 25, 2013, the District Court of New Jersey ordered the spoliation sanction of an adverse inference at trial for plaintiff’s deletion of his Facebook account.  The court refused to order attorneys’ fees and costs finding that, in this instance, there was no evidence that the plaintiff was motivated by fraudulent purposes or diversionary tactics and that the loss of evidence would not cause unnecessary delay.  Gatto v. United Air Lines, Inc., 10-CV-1090-ES-SCM (March 25, 2013).

In Gatto, the plaintiff filed a personal injury action alleging that he was permanently disabled, and that his disability limits his physical and social activities.  Defendants sought to obtain discovery related to the plaintiff’s damages and his social activities.  Upon defendants’ request, the court required the plaintiff to provide an authorization to the defendants for his Facebook account as well as temporarily change his password to the account, to allow defendants to access the account.  Thereafter, the plaintiff either deactivated his account or purposefully deleted it; it was irrelevant to the court which scenario occurred as both involved the withholding or destruction of evidence.  Finding that the evidence contained in the plaintiff’s Facebook account was relevant to the issue of damages and overall credibility, the court granted the defendants’ motion for spoliation sanctions and granted their request for a “spoliation instruction” at trial.