Social Spoliation

The rapid evolution of technology often poses challenges as governing legal regimes struggle to keep up. Social media is no exception. But in discovery regarding parties' activities in online communities such as Facebook or Twitter, posts and tweets have the same status as potential evidence that emails or other more traditional electronic media do - and the same preservation duties apply. Parties who fail to observe a litigation hold and preserve evidence contained in their social networking accounts when litigation is pending or anticipated do so at their peril. Consequently, litigation hold letters to clients and adversaries alike should expressly cover social media when its content may be relevant to the dispute.

The few courts that have addressed the issue of social media spoliation have had little trouble applying existing legal standards to these relatively new modes of communication.

Deactivation Dangers
In Gatto v. United Air Lines, Inc. (2013 WL 1285285 (D.N.J.)), a federal magistrate judge sanctioned a personal injury plaintiff for deactivating his Facebook account while litigation was pending. During discovery, the defendants requested information regarding the plaintiff's personal Facebook account, including information regarding the physical and social activities that the plaintiff engaged in. Several months later, the plaintiff responded by providing defense counsel with an account password to permit access to the information in the account. Approximately two weeks later, however, the plaintiff allegedly deactivated his account after he learned that a third party had accessed it. Under its then-existing policy, Facebook automatically deleted the account 14 days later. The defendants requested that the court impose issue sanctions on the plaintiff.

The Gatto court applied existing Third Circuit case law in its analysis. Under that rubric, a court must find that four factors are satisfied before giving an adverse inference jury instruction: 1) the evidence was within the party's control; 2) there was an actual suppression or withholding of evidence; 3) the evidence destroyed or withheld was relevant to the claims or defenses; and 4) it was reasonably foreseeable that the evidence would be discoverable. (See Brewer v. Quaker State Oil Ref. Co., 72 F.3d 326 (3rd Cir. 1995).)

The court ruled that the Facebook account was clearly within plaintiff's control. It concluded that the account was relevant to the claims or defenses at issue and that it was reasonably foreseeable that the evidence would be discoverable - particularly since it had been the subject of prior discovery.

Did this constitute "actual suppression or withholding of evidence"? The plaintiff argued that because he was involved in contentious divorce proceedings and his account had been hacked, it was reasonable to deactivate it. The plaintiff also argued that the loss of his Facebook data was accidental because Facebook "automatically" deleted the account. The court rejected these arguments, concluding that the plaintiff had violated his obligations to preserve relevant evidence. It granted the defendants' request for a jury instruction permitting the jurors to draw an adverse inference against the plaintiff.

Harm May be Presumed
The Virginia Supreme Court also recently addressed spoliation of social media evidence. In the appeal of a wrongful death case (Allied Concrete Co. v. Lester, 736 S.E. 2d 699 (Va. 2013)), it denied the defendant, Allied Concrete, a new trial in part because it concluded that the trial court had imposed an adequate sanction, directing the jury to presume that spoliated Facebook evidence would have been harmful to the plaintiff's case.

The actions that the plaintiff and his counsel took in Allied Concrete provide a quintessential example of what not to do when faced with problematic posts on a Facebook account. Allied Concrete served a discovery request for information from the plaintiff's Facebook account. It attached to the request a photo from the account showing the plaintiff holding a beer can while wearing a T-shirt emblazoned with "I [heart] hot moms." After receiving the discovery request, the plaintiff's attorney instructed his paralegal to tell the plaintiff to "clean up" his Facebook page because "We do NOT want any blow-ups of this stuff at trial." The paralegal also instructed the plaintiff to delete several other photographs from the site.

The plaintiff deactivated his Facebook account. The very next day, he responded to the defendant's discovery request, stating that he had no Facebook page as of the date of the response. After the defendant filed a motion to compel, the plaintiff reactivated the account, deleted 16 photos, and provided some account information to the defendant. In deposition several months later, however, the plaintiff denied that he had ever deactivated the account. As a result of this deception, the defendant had to subpoena Facebook and hire an expert to determine how much Facebook evidence had been destroyed.

The misconduct by the plaintiff (and his attorney) led the trial court to instruct the jury that the plaintiff "was asked in discovery in this case to provide information from his Facebook account" but "[i]n violation of the rules ... before responding to the discovery, he intentionally and improperly deleted certain photographs from his Facebook account, at least one of which cannot be recovered." The jury was told to "presume that the photograph or photographs [the plaintiff] deleted from his Facebook account were harmful to his case." The trial court sanctioned the plaintiff $180,000 and his attorney $542,000 to cover the defendant's added costs and legal fees.

The Virginia Supreme Court concluded that the jury instruction was adequate to mitigate the prejudice caused by the spoliation, and so the spoliation did not prevent Allied from receiving a fair trial on the merits.

No state or federal courts in California have, as of this writing, addressed social media spoliation, but the lessons of Gatto and Allied Concrete provide useful guidance until California courts weigh in. Counsel who expect social media from the opposing side to be relevant to the dispute should serve discovery requests expressly targeting social media early on. Promptly putting an adversary on notice that social media is relevant could convince a court that any subsequent destruction of such evidence resulted from gross negligence - or worse.

Attorneys who believe their client's social media may be relevant to the case should be sure to talk with the client about the need to preserve that evidence, and advise the client in writing not to deactivate or delete any accounts while litigation is pending.

Finally, in any litigation hold letter - sent either to a client or an adversary - consider requesting preservation of social media (and specifically identify popular social networks such as Facebook, Twitter, LinkedIn, and Google+).

Scott E. Atkinson, an associate at Carr McClellan Ingersoll Thompson & Horn in Burlingame, focuses on business litigation in the technology sector.

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