Social media continues to impact our lives in various ways. Inrecent years, it has left an indelible mark in court proceedings.This has opened a Pandora's box in terms of using social mediainformation as evidence while respecting users' privacyrights.

Adding another layer of complexity is how to preserve andprotect this social media “evidence.” In some instances, this mayentail preventing a Facebook user from deleting his or her accountor digital photo albums. In others, such as the case examples wereview here, the restrictions can be far more elaborate, thepenalties for disobedience far greater. That's because thedestruction or ”spoliation” of evidence can not only undermineone's defense but also a litigator's career, culminating insevere sanctions.

Necessary Intent

Spoliation occurs where evidence is destroyed orsignificantly altered, or where a party fails to “preserve propertyfor another's use as evidence in pending or reasonably foreseeablelitigation.”¹ A party must preserve relevantevidence² when he or she knows of orshould reasonably anticipate litigation.³

It follows that at the moment the party seriously contemplatesor commits to litigation, the preservation obligation begins andthe intentional alteration or deletion of relevant social media information should amount to spoliation.Increasingly courts agree, as was the case in Gatto v. UnitedAirlines Inc. et al.,⁴ and Lester v. AlliedConcrete Co.⁵ that spoliation occurswhere:

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

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

No unfavorable inference arises when the circumstances indicatethat the evidence in question has been lost or accidentallydestroyed, or where the failure to produce it is otherwise properlyaccounted for.⁷

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

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

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

The Document Request

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

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

At trial, the plaintiff's counsel attempted to introduce one ofthe 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 isa 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 theoriginal despite several years of requests, the judgedeclared a mistrial and invited UPS to file sanctions. The plaintiff then provided the original notesfive days later. On appeal, addressing whether the plaintiff'sconduct amounted to spoliation, the Third Circuit reasoned thatthere was no question the original notes were within her controlsince she admitted on the stand that she had them and produced themto the court five days after the trial court declared a mistrial.The notes were relevant to the claims and defense of the casebecause the notes discussed the plaintiff's capacity towork.¹¹

Formal Discovery

The court was not convinced the plaintiff had the knowledge orintent necessary for spoliation. While the defendants insisted thatthey made several requests for the originals over the course ofyears, the court could identify only two such requests.Furthermore, they were not formal discovery requests. The first request was made to the unionrepresentative, not the plaintiff. The court was thereforeunwilling to impute the representative's knowledge of the requestto the plaintiff. The second request came only five days beforetrial, after discovery was closed, in the form of an email. Therewas no evidence the plaintiff was aware of this email.

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

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

Although it concluded the district court actedwithin its discretion in finding that the future need to provideaccess to the original notes was reasonably foreseeable, it heldthat the trial court abused its discretion in finding that theplaintiff acted with bad faith in withholding the original copiesof the notes. The court therefore ruled that the district court hadabused its discretion in finding the plaintiff to have committedactionable spoliation.¹³

Social Media Accounts

While Bull addressed spoliation of tangibleevidence, social media spoliation has most recently been addressedin Gatto v. United Airlines Inc. etal.,¹⁴ where the plaintiff claimed to have injuredhimself on the job, thereby causing a torn rotator cuff, a tornmeniscus and back injuries, all of which rendered him permanentlydisabled with physical and social limitations.¹⁵ On July27, 2011, the defendant requested documents and information relatedto the plaintiff's social media accounts, and on November 21, 2011,the plaintiff provided signed authorizations for various socialnetworking sites, with one glaring omission. He did not include onefor Facebook.¹⁶

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

Deliberate Destruction of Evidence

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

Defense counsel requested that the plaintiff immediatelyreactivate his account. However, he was unable to do so becauseFacebook had “automatically deleted” the account 14 days afterits deactivation.²¹ Plaintiff's counsel confirmed thatall of the Facebook data had indeed been lost. The plaintiffclaimed to have done this because at the same time, he was involvedin a contentious divorce. He said his account had been“hacked” several times in the past, and when he received noticethat his account had been accessed by an unknown IP address, hepromptly deleted it.²²

Importantly, the court pointed out that by the time theplaintiff had decided to delete the page because of the warningabout the foreign IP access, he had already been informed thatdefense counsel had accessed the page.²³ Considering the same four factors outlinedin Bull, the court found that the Facebook account wasclearly within the control of the plaintiff, as he had theauthority to add, delete, or modify his account.²⁴ Itwas also clear to the court that the information lost was relevantto the claims or defense as the information was germane toplaintiff's personal injuries and limitations and bore directly ondamages.²⁵

Facebook Faux Pas

In addition, the court found it was reasonably foreseeable thatthe Facebook information would be sought in discovery as theinformation had been previously requested 5 months before theplaintiff deleted the account and had been discussed in subsequentsettlement conferences.²⁶ In regard tointent, the court noted:

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

Having considered the facts and the four requirements laid outin Bull, the court granted defendants' motion for anadverse inference at trial.²⁸ While Gattoaddressed a situation where the litigant himself had engaged inspoliation, one court has addressed the situation where a litigantdoes so at the behest of his counsel.²⁹

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

In considering sanctions, the judge found that plaintiff'scounsel instructed his paralegal to tell the plaintiff to “cleanup” his Facebook page because 'we don't want blowups of this stuffat trial.'”³² A second e-mail had been sent byplaintiff'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 cleanup your [F]acebook and [M]yspace!”³³

That same day, rather than responding to the request forproduction of documents that asked for a print out of the entireFacebook page, plaintiff's counsel created a scheme to deactivateand take down the page. Counsel responded the “[plaintiff] hadno Facebook page as of the date this response wassigned.”³⁴

The court ordered that a final order be deferred until the afterjury verdict, and, directed the plaintiff to produce all e-mails,their privilege log and all other documents previouslyrequested.³⁵ The defendants filed several Motions forMonetary Sanctions against plaintiff's counsel, his support staffand the plaintiff himself for spoliation of the Facebook evidence,the coverup by his counsel, and other misbehaviors attrial.³⁶ After consulting with outside counsel on hise-discovery obligations, plaintiff's counsel decided to produce theprint-screens and had the plaintiff's Facebook pagereactivated.³⁷

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

The Cost of Disobedience

An expert confirmed that 16 photographs had been deletedfrom the plaintiff's Facebook page. Fifteen photos wererecovered, and the remaining was provided to counsel directly.All of the photographs were available to counsel before trial, andthe court found there had been no prejudice suffered by thedefendant. In a later order, the court determined there had beenspoliation of evidence by the plaintiff and that the actions of hiscounsel and their agents in that spoliation remained the subject offurther findings. The court also provided an adverse inferenceinstruction to the jury. Despite the inference, the trialresulted in an award of more than $10,000,000 to all of theplaintiffs.

The court found that when the plaintiff's counsel was servedwith interrogatories and requests for the production of documents,he had a duty to produce all such described documents within hispossession, custody or control and his signature on the requestsverified that he had read, understood and complied with hisobligation and the law governing it.⁴⁰ However, ratherthan comply with this duty the plaintiff's counsel chose to“obstruct production of the requested screen-prints by drafting adeceptive response . . .and then instructing his client totake down his Facebook page.”⁴¹ Quite firmly the courtstated “[both plaintiff and plaintiff's counsel] must be heldaccountable for the spoliation. [Plaintiff] did what [plaintiff'scounsel] told him to do, deliberately delete Facebook photos thatwere responsive to a pending discovery request. Defendants areentitled to sanctions….”⁴²

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

Moreover, the court stated it would refer all allegations ofplaintiff's counsel's conduct to the Virginia State Bar Associationfor disciplinary action.⁴⁵ At a later hearing, the courtultimately 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 triggeredby initiating litigation—that is, filing a complaint—and may wellbegin before that time. This means a litigant must retain hisor her reasonably foreseeable relevant ESI, including socialmedia information. The failure to do so may amount tospoliation if the requisite factors, that 1) the evidence waswithin the party's control; 2) the evidence was relevant to theclaims or defenses in the case; 3) there was actual suppression,alteration, destruction or withholding of evidence; and 4) the needto 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 mediainformation as potentially dispositive evidence in litigation, andthat its destruction—either by an individual litigant directly orat the behest of counsel—will amount to spoliation. This, inturn, could result in monetary sanctions, or what is regarded bymany litigators to be the “kiss of death,” namely an adverseinference 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 StoredInformation. Social Media Information (SMI) is generally regardedto be a subset of ESI and treated in mostly the same regards asemail, electronic documents, electronic images, recorded sounds,ephemeral data, etc.

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

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

[5] CL08-150, CL09-223, 2010 WL7371245 (Va. Cir. Ct. May 27, 2010).

[6] Bull, 665 F.3d at79.

[7] Id. (citingBrewer v. Quaker State Oil Refining Corp., 72 F.3d326, 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, SlipCopy, 2013 WL 1285285 (D.N.J.,2013).

[15] Id. at *1-2.

[16] Id.

[17] Id. at *2

[18] Id.

[19] Id.

[20] Id. Thecourt noted that it was not concerned with whether the plaintiff“deactivated” or had actually “deleted” the Facebook page, since inthe court's opinion, as “either scenario involves the withholdingor 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, 2010WL 7371245 (Va. Cir. Ct. May 27, 2010).

[30] CL08-150, CL09-223. Thiswas a second Order entered by the court, but as of the date of thispublication, a citation had not been provided by the court nor hada reporting system recorded it. Copies of the Order are availabledirectly 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, FinalOrder.