It follows that at the moment the party seriously contemplates or commits to litigation, the preservation obligation begins and the intentional alteration or deletion of relevant social media information should amount to spoliation. Increasingly courts agree, as was the case in Gatto v. United Airlines Inc. et al.,⁴ and Lester v. Allied Concrete Co.⁵ that spoliation occurs where:

1. The evidence was within the party's control.
2. The evidence was relevant to the claims or defense in the case.
3. There has been actual suppression, alteration, destruction or withholding of evidence.
4. The duty to preserve the evidence was reasonably foreseeable to the party.

“[A] finding of bad faith is pivotal to a spoliation determination.” Spoliation requires that evidence was actually withheld, rather than misplaced, and withholding requires intent.⁶

No unfavorable inference arises when the circumstances indicate that the evidence in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for.⁷

In determining which spoliation sanction is appropriate, courts consider the following factors:

• The degree of fault of the party who altered or destroyed the evidence.
• The degree of prejudice suffered by the opposing party.
• Whether there is a lesser sanction that will avoid substantial unfairness to the opposing party, or, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.⁸

An adverse inference instruction permits a jury to infer that the fact that a document was not produced or destroyed is “evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.”⁹

The Document Request

Although a case regarding the spoliation of tangible documents and not social media, the Third Circuit's spoliation standard in Bull v. United Parcel Service, Inc. has been later applied to social media spoliation cases. In Bull, an employee of the defendant claimed to have injured her neck and shoulder on the job and was thus restricted in her work abilities. After consulting a union representative, the plaintiff was referred to an orthopedic specialist, who provided her with two doctors notes restricting her to lifting a maximum weight of 50 pounds.

The required minimum lift weight for her job was 70 pounds. The plaintiff faxed copies of these notes to the defendant; however, they were blurry and illegible. Defense counsel asked the plaintiff for the originals, which were never produced. The plaintiff then filed a workers' compensation suit. UPS argued it had made several requests for the original notes; however, the plaintiff stated from the beginning that she no longer had them.

At trial, the plaintiff's counsel attempted to introduce one of the copies. At sidebar, the judge asked where the originals were, to which plaintiff's counsel responded:

“[W]e don't have them; it doesn't exist anymore. All we have is a copy.”¹⁰

The judge then asked the plaintiff where the original note was, to which she answered: “The original note is in my home….”

Angered at the plaintiff and her counsel for not producing the original despite several years of requests, the judge declared a mistrial and invited UPS to file sanctions. The plaintiff then provided the original notes five days later. On appeal, addressing whether the plaintiff's conduct amounted to spoliation, the Third Circuit reasoned that there was no question the original notes were within her control since she admitted on the stand that she had them and produced them to the court five days after the trial court declared a mistrial. The notes were relevant to the claims and defense of the case because the notes discussed the plaintiff's capacity to work.¹¹

Formal Discovery

The court was not convinced the plaintiff had the knowledge or intent necessary for spoliation. While the defendants insisted that they made several requests for the originals over the course of years, the court could identify only two such requests. Furthermore, they were not formal discovery requests. The first request was made to the union representative, not the plaintiff. The court was therefore unwilling to impute the representative's knowledge of the request to the plaintiff. The second request came only five days before trial, after discovery was closed, in the form of an email. There was no evidence the plaintiff was aware of this email.

The court held that the letter to the union representative and the email did not show that the plaintiff intentionally withheld the original notes. The court did not find that the discrepancy in the plaintiff's statements amounted to bad faith, but rather there was strong evidence suggesting inadvertence, given plaintiff's and her counsel's attempt to clarify the issue at sidebar. Additionally, there was no evidence to suggest the plaintiff herself was actually aware of the requests for the originals.

Finally, the court examined whether the plaintiff had a duty to preserve the original notes. Although the district court concluded that “it is hard to imagine evidence that would have been more . . .foreseeable,” the Third Circuit questioned whether or not a layperson with no knowledge of the Rules of Evidence would have concluded copies of the notes were not sufficient.¹²

Although it concluded the district court acted within its discretion in finding that the future need to provide access to the original notes was reasonably foreseeable, it held that the trial court abused its discretion in finding that the plaintiff acted with bad faith in withholding the original copies of the notes. The court therefore ruled that the district court had abused its discretion in finding the plaintiff to have committed actionable spoliation.¹³

Social Media Accounts

While Bull addressed spoliation of tangible evidence, social media spoliation has most recently been addressed in Gatto v. United Airlines Inc. et al.,¹⁴ where the plaintiff claimed to have injured himself on the job, thereby causing a torn rotator cuff, a torn meniscus and back injuries, all of which rendered him permanently disabled with physical and social limitations.¹⁵ On July 27, 2011, the defendant requested documents and information related to the plaintiff's social media accounts, and on November 21, 2011, the plaintiff provided signed authorizations for various social networking sites, with one glaring omission. He did not include one for Facebook.¹⁶

During a discovery hearing on December 1, 2011, the plaintiff agreed to change his password and then provided it to defense counsel.¹⁷ Shortly thereafter, defense counsel accessed the Facebook account and printed portions of the man's Facebook page.¹⁸

Deliberate Destruction of Evidence

On December 9, 2011, plaintiff's counsel emailed defense counsel stating that the plaintiff had received a notice from Facebook that his account was accessed from an unfamiliar IP address and inquired as to whether or not the defense had done so. On December 15, 2011, one of the defendants confirmed that they had, yet one defendant had not.¹⁹ On January 20, 2012, plaintiff's counsel notified the defendants that the plaintiff “deactivated” or otherwise deleted his Facebook page on December 16, 2011.²⁰

Defense counsel requested that the plaintiff immediately reactivate his account. However, he was unable to do so because Facebook had “automatically deleted” the account 14 days after its deactivation.²¹ Plaintiff's counsel confirmed that all of the Facebook data had indeed been lost. The plaintiff claimed to have done this because at the same time, he was involved in a contentious divorce. He said his account had been “hacked” several times in the past, and when he received notice that his account had been accessed by an unknown IP address, he promptly deleted it.²²

Importantly, the court pointed out that by the time the plaintiff had decided to delete the page because of the warning about the foreign IP access, he had already been informed that defense counsel had accessed the page.²³ Considering the same four factors outlined in Bull, the court found that the Facebook account was clearly within the control of the plaintiff, as he had the authority to add, delete, or modify his account.²⁴ It was also clear to the court that the information lost was relevant to the claims or defense as the information was germane to plaintiff's personal injuries and limitations and bore directly on damages.²⁵

Facebook Faux Pas

In addition, the court found it was reasonably foreseeable that the Facebook information would be sought in discovery as the information had been previously requested 5 months before the plaintiff deleted the account and had been discussed in subsequent settlement conferences.²⁶ In regard to intent, the court noted:

“Even if the plaintiff did not intend to permanently deprive the defendants of the information associated with his Facebook account, there is no dispute the plaintiff intentionally deactivated the account.”²⁷

Having considered the facts and the four requirements laid out in Bull, the court granted defendants' motion for an adverse inference at trial.²⁸ While Gatto addressed a situation where the litigant himself had engaged in spoliation, one court has addressed the situation where a litigant does so at the behest of his counsel.²⁹

In Lester v. Allied Concrete Co., the defendants filed a Motion for Sanctions alleging that the plaintiff deliberately spoilated evidence that should have been produced in response to the document request for the plaintiff's Facebook page.³⁰ There, the plaintiff brought a negligence action for the death of his wife and the injuries he sustained. Interrogatories and document requests were served on the plaintiff. Attached to them was a photograph from the plaintiff's Facebook page showing the plaintiff clutching a beer can amongst other youths with a t-shirt stating, “I <3 hot moms.”³¹

In considering sanctions, the judge found that plaintiff's counsel instructed his paralegal to tell the plaintiff to “clean up” his Facebook page because 'we don't want blowups of this stuff at trial.'”³² A second e-mail had been sent by plaintiff's counsel to the plaintiff again demanding he “clean up” his social media account, stating:

“We do NOT want blow ups of other pics at trial, so please clean up your [F]acebook and [M]yspace!”³³

That same day, rather than responding to the request for production of documents that asked for a print out of the entire Facebook page, plaintiff's counsel created a scheme to deactivate and take down the page. Counsel responded the “[plaintiff] had no Facebook page as of the date this response was signed.”³⁴

The court ordered that a final order be deferred until the after jury verdict, and, directed the plaintiff to produce all e-mails, their privilege log and all other documents previously requested.³⁵ The defendants filed several Motions for Monetary Sanctions against plaintiff's counsel, his support staff and the plaintiff himself for spoliation of the Facebook evidence, the coverup by his counsel, and other misbehaviors at trial.³⁶ After consulting with outside counsel on his e-discovery obligations, plaintiff's counsel decided to produce the print-screens and had the plaintiff's Facebook page reactivated.³⁷

Unfortunately, believing he was still acting under his counsel's wishes to “clean up” the page, the plaintiff deleted 16 photographs from his Facebook account after it had been reactivated.³⁸ Several IT experts came to the conclusion that spoliation had occurred.³⁹

The Cost of Disobedience

An expert confirmed that 16 photographs had been deleted from the plaintiff's Facebook page. Fifteen photos were recovered, and the remaining was provided to counsel directly. All of the photographs were available to counsel before trial, and the court found there had been no prejudice suffered by the defendant. In a later order, the court determined there had been spoliation of evidence by the plaintiff and that the actions of his counsel and their agents in that spoliation remained the subject of further findings. The court also provided an adverse inference instruction to the jury. Despite the inference, the trial resulted in an award of more than $10,000,000 to all of the plaintiffs.

The court found that when the plaintiff's counsel was served with interrogatories and requests for the production of documents, he had a duty to produce all such described documents within his possession, custody or control and his signature on the requests verified that he had read, understood and complied with his obligation and the law governing it.⁴⁰ However, rather than comply with this duty the plaintiff's counsel chose to “obstruct production of the requested screen-prints by drafting a deceptive response . . .and then instructing his client to take down his Facebook page.”⁴¹ Quite firmly the court stated “[both plaintiff and plaintiff's counsel] must be held accountable for the spoliation. [Plaintiff] did what [plaintiff's counsel] told him to do, deliberately delete Facebook photos that were responsive to a pending discovery request. Defendants are entitled to sanctions….”⁴²

Under a theory of remittitur, a jury award can be reduced if it was excessive, or a product of passion, bias, sympathy or prejudice.⁴³ The court found not only was the plaintiff's award excessive but it was also unfair because of plaintiff's counsel's conduct both in and out of the court room.⁴⁴ The court ordered monetary sanctions against the plaintiff and his counsel and that he remit $4,127,000 of the award.

Moreover, the court stated it would refer all allegations of plaintiff's counsel's conduct to the Virginia State Bar Association for disciplinary action.⁴⁵ At a later hearing, the court ultimately entered sanctions against the plaintiff in the amount of $180,000 and his counsel in the amount of $542,000.⁴⁶

Thus a litigant's preservation obligation certainly is triggered by initiating litigation—that is, filing a complaint—and may well begin before that time. This means a litigant must retain his or her reasonably foreseeable relevant ESI, including social media information. The failure to do so may amount to spoliation if the requisite factors, that 1) the evidence was within the party's control; 2) the evidence was relevant to the claims or defenses in the case; 3) there was actual suppression, alteration, destruction or withholding of evidence; and 4) the need to preserve the evidence was reasonably foreseeable to the party, are met.

In light of the decisions in Gatto and Lester, it is clear that courts are increasingly regarding social media information as potentially dispositive evidence in litigation, and that its destruction—either by an individual litigant directly or at the behest of counsel—will amount to spoliation. This, in turn, could result in monetary sanctions, or what is regarded by many litigators to be the “kiss of death,” namely an adverse inference being read to the jury.

[1] Mosaid Technologies v. Samsung Electronics, 348 F.Supp.2d 332, 335 (D.N.J.2004) (internal citations omitted).

[2] Electronically Stored Information. Social Media Information (SMI) is generally regarded to be a subset of ESI and treated in mostly the same regards as email, electronic documents, electronic images, recorded sounds, ephemeral data, etc.

[3] Bull v. United Parcel Service, Inc., 665 F.3d 68 (3d Cir. 2012) (citing Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326 (3d Cir. 1995); See also Micron Technology v. Rambus, Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011). The court noted further, that at times, the non-production of evidence can have the same practical effect as destroying it.

[4] 10-cv-1090-ES-SCM, Slip Copy, 2013 WL 1285285 (D.N.J.,2013).

[5] CL08-150, CL09-223, 2010 WL 7371245 (Va. Cir. Ct. May 27, 2010).

[6] Bull, 665 F.3d at 79.

[7] Id. (citing Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir.1995)).

[8] Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir.1994).

[9] Scott v. IBM, Corp., 196 F.R.D. 223, 248 (D.N.J.2000).

[10] Id. at 71.

[11] Id. at 74.

[12] Id. at 78.

[13] Id. at 77.

[14] 10-cv-1090-ES-SCM, Slip Copy, 2013 WL 1285285 (D.N.J.,2013).

[15] Id. at *1-2.

[16] Id.

[17] Id. at *2

[18] Id.

[19] Id.

[20] Id. The court noted that it was not concerned with whether the plaintiff “deactivated” or had actually “deleted” the Facebook page, since in the court's opinion, as “either scenario involves the withholding or destruction of evidence.” Id. at Fn. 1.

[21] Id.

[22] Id. at *5-6.

[23] Id. at *6.

[24] Id. at *10

[25] Id. at *10-11.

[26] Id. at *11.

[27] Id. at *12.

[28] Id. at * 13-14.

[29] CL08-150, CL09-223, 2010 WL 7371245 (Va. Cir. Ct. May 27, 2010).

[30] CL08-150, CL09-223. This was a second Order entered by the court, but as of the date of this publication, a citation had not been provided by the court nor had a reporting system recorded it. Copies of the Order are available directly from the author.

[31] Id. at ¶30.

[32] Id. at ¶33.

[33] Id. at ¶34.

[34] Id. at ¶36.

[35] Id. at ¶15.

[36] Id. at ¶17 – 19.

[37] Id. at ¶42, 47.

[38] Id. at ¶ 48.

[39] Id. at ¶57-58.

[40] Id. at ¶95-96.

[41] Id. at ¶97.

[42] Id. at ¶100.

[43] Id. at ¶109.

[44] Id. at ¶111-18.

[45] Id. at ¶119.

[46] CL08-150, CL09-223, Final Order.