Hunton Employment & Labor Perspectives

As 2013 winds to a close, we take this opportunity to alert you to two significant cases from earlier this year pertaining to the spoliation of social media evidence.  In both of these cases, the plaintiffs – either intentionally or accidentally – destroyed evidence on their social media sites resulting in severe sanctions.  The central takeaway from these cases is that social media evidence – from a preservation standpoint – is identical to physical evidence and, thus, should not be altered, modified, or deleted during the pendency of litigation.

Allied Concrete Company v. Lester

In Allied Concrete Company v. Lester, the Virginia Supreme Court was faced with the question of whether to overturn a significant jury verdict in a personal injury case and award a new trial given the plaintiff’s spoliation of social media evidence.  The Court denied the appeal on the grounds that the trial court had adequately addressed the plaintiff’s spoliation.  Nonetheless, the case provides a classic example of the dangers of concealing and deleting social media evidence.

Plaintiff was driving his wife to work when Defendant’s concrete truck lost control and landed on his vehicle, resulting in the death of Plaintiff’s wife and significant injuries to himself.  Plaintiff filed suit for wrongful death and his personal injuries, including mental anguish.  While litigation was pending, Defendant requested that Plaintiff produce information and pictures from his Facebook page, including a picture of Plaintiff holding a beer can and wearing a shirt stating, “I ♥ hot moms.”

Following this discovery request, Plaintiff’s law firm directed him to “clean up” his Facebook page because “[w]e don’t want any blow-ups of this stuff at trial.”  Plaintiff then deactivated his Facebook page.  Following a motion to compel, the page was reactivated for the purposes of printing information and pictures responsive to the discovery requests.  Subsequently, Plaintiff logged into his Facebook account and deleted 16 pictures.

When the dust settled, Defendant incurred significant legal and expert fees in addressing Plaintiff’s conduct and recovering the pictures.  After Defendant moved for sanctions, the trial court granted Defendant over $700,000 in fees and costs.  In addition, and perhaps more critical to the multi-million dollar case, Defendant was granted a jury instruction that Plaintiff had “intentionally and improperly deleted certain photographs from his Facebook account, at least one of which cannot be recovered.”  Moreover, the jury was instructed that they should “presume that the photograph or photographs [Plaintiff] deleted from his Facebook account were harmful to his case.”

Gatto v. United Air Lines, Inc.

In Gatto v. United Air Lines, Inc., the U.S. District Court for the District of New Jersey was similarly faced with the question of how to address Plaintiff’s spoliation of social media data.

In this case, Plaintiff filed suit for personal injuries that allegedly occurred while he was unloading baggage from an aircraft.  Plaintiff alleged that he was permanently disabled and limited in physical and social activities.  Following a discovery request for social media data, the Court ordered Plaintiff to provide Defendants with an authorization to obtain the data directly from Facebook, and the parties agreed that Plaintiff would provide Defendants with his Facebook password for Defendants’ counsel to access his Facebook page.  Prior to receipt of the records, Plaintiff deactivated his Facebook account which, after a certain period of time, led to the information on his account to be permanently deleted.

Following this development, Defendants moved the Court for (i) a jury instruction stating that the jury may “draw an adverse inference against Plaintiff for failing to preserve his Facebook account and intentional destruction of evidence” and (ii) attorney’s fees and costs.  In response, Plaintiff contended that he deactivated his account because he thought it was being “hacked” and was not aware that the deactivation would permanently delete the information.

The Court granted the request for an adverse jury instruction, holding that Plaintiff’s intentional deactivation of the account, although perhaps not done in bad faith, had prejudiced Defendants in obtaining potentially relevant information with regard to Plaintiff’s damages and credibility.  The Court, however, denied Defendants’ request for monetary sanctions because the destruction of evidence  did “not appear to be motivated by fraudulent purposes or diversionary tactics.”