It is not, as many recent articles and blogs have discussed, just about whether relevant social media information can be discovered by one party in a lawsuit.  It is also about what happens when a party fails to preserve potentially-relevant social media information in the first place, and that information subsequently gets destroyed and becomes non-discoverable.   A federal district court judge in New Jersey recently upped the ante.

In Gatto v. United Air Lines, the plaintiff was an airline ground operations supervisor who was injured when a set of fueler stairs crashed into him.  As is typical nowadays in the personal injury world, defendants sought social media account information in discovery to obtain relevant information about plaintiff's damages and social activities, all in an effort to defend the personal injury claims.   In the course of a dispute over the scope of access, plaintiff's password was given to defense counsel, who apparently (and without plaintiff's or plaintiff's counsel's knowledge) accessed plaintiff's Facebook account and printed some portions of the Facebook page.

Not knowing that defense counsel had accessed the account, plaintiff received a notice from Facebook advising that his account had been accessed from an unknown computer.   As a result, plaintiff deactivated his account, which resulted in all of the information and documents being lost due to an automatic 14-day deletion practice of Facebook upon a deactivation.   Defendant requested that the court penalize plaintiff with sanctions for "spoliation", which essentially means the destruction or significant alteration of evidence, or where a party fails to "preserve property for another's use as evidence in pending or reasonably foreseeable litigation."

The court agreed with the defendant, finding that "it is beyond dispute that plaintiff had a duty to preserve his Facebook account at the time it was deactivated and deleted."    But the court went further, noting that plaintiff's intent (or, more pointedly, any lack of a nefarious intent) was largely irrelevant:

"Even if Plaintiff did not intend to permanently deprive the defendants of the information associated with his Facebook account, there is no dispute that Plaintiff intentionally deactivated the account.  In doing so, and then failing to reactivate the account within the necessary time period, Plaintiff effectively caused the account to be permanently deleted. . . .  As a result, Defendants are prejudiced because they have lost access to evidence that is potentially relevant to Plaintiff's damages and credibility.  In light of all of the above, a spoliation inference is appropriate."

For those scoring at home, a "spoliation inference" is an instruction that a judge gives to a jury at the end of a trial that allows them to draw an inference that the contents of destroyed evidence would have harmed the party that prevented production of that evidence.

Employer Take Away: What should you as an employer take away from this development?

Court decisions are going to continue to be issued, not only about social media discovery, but about the affirmative duty to preserve social media information in certain circumstances, and the consequences of not meeting that duty.   The rules apply equally to plaintiffs and defendants, and will apply across all types of cases, including employment law cases.

A couple of lessons for you and your company:

1. When your litigation is deemed appropriate for discovery on social media, make sure requests are served on the employee's counsel as soon as possible.   It is certainly at that point, if not sooner, that the employee will have a duty to preserve potentially-relevant information that can be obtained through social media, and ensure that it does not get destroyed even unintentionally.

2. It is equally critical to understand that the preservation rules apply to you.   Make sure the appropriate "litigation hold" memo is distributed to the appropriate custodians at the appropriate time, and make sure that the memo includes all potentially-relevant social media sources as well.

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.