In Gatto v. United Airlines, 10-CV-1090 (D.N.J., March 25, 2013), the Plaintiff, a baggage handler at JFK Airport, was injured when he was struck by a set of mobile stairs while on the job. Defendants sought evidence relating to Gatto’s damages and social activities, specifically requesting access to Gatto’s social media accounts. Granting the Defendants’ request, the Court ordered Gatto to change his Facebook password to “alliedunited.”
Subsequently, Gatto received notification from Facebook that his account had been accessed by an unfamiliar IP address. Gatto claimed he received this alert after he received assurance from defense counsel that they would not access his account. Shortly after receiving the notification, Gatto deactivated and deleted his entire Facebook account.
Applying the spoliation doctrine, the Court held that Gatto violated his “duty to preserve his Facebook account at the time it was deactivated at deleted” and that the defense would be prejudiced by the destruction of the evidence. The Court ruled that the most appropriate sanction was an adverse inference jury instruction, which would permit a jury to infer that the evidence Gatto deleted would have been detrimental to his claims.
The Gatto case is yet another example of courts holding that there is no expectation of privacy for social media – a finding that should concern a majority of Facebook users (at least a majority of those that show up on my newsfeed).
The moral of the story is to think before you post and - if you are in the middle of litigation - think before you delete. A simple act of cleaning up those questionable pictures on your wall may carry severe consequences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.