Facebook Discovery and Spoliation - COTW #137

Last week, a federal court in our circuit (D.N.J. in the 3d Cir.) issued a spoliation order with analysis of destruction of evidence on Facebook: Gatto v. United Airlines.

The parties attended a settlement conference on December 1, 2011, where the plaintiff agreed to set his Facebook password to 'alliedunited' for "the purpose of accessing documents and information from Facebook." There is some dispute about whether defense counsel was supposed to directly access the page (why would they get the password if not?), and the plaintiff claims he was concerned by a subsequent Facebook notice regarding an unusual access attempt.

So, he "deactivated" his account on December 16, 2011. Some interesting notes about shutting down your Facebook account:

• Facebook itself explains that there is a difference between deactivating and deleting your account; and
• If you delete your account, Facebook apparently deletes it permanently after 14 days (at least they did as of December 2011).

It turns out that the plaintiff didn't "deactivate" his account but permanently deleted it . . . as in forever. 

This is a pretty easy spoliation case for the Court to resolve. The plaintiff knew the Facebook information was the subject of discovery, and permanently deleted it. The Court held that an adverse inference instruction will be given to the jury.

See additional coverage: Molly DiBianca's Spoliation of Facebook Evidence.