Deleting Facebook Account has Adverse Consequences for a New Jersey Plaintiff

A plaintiff claiming permanent disability stemming from on-the-job injuries suffered a significant blow to his case as a result of deleting his Facebook account. A New Jersey federal district court ruled the plaintiff’s actions merited an “adverse inference” jury instruction, meaning the jury that will eventually hear the plaintiff’s lawsuit will be notified that the plaintiff intentionally destroyed evidence he believed would harm his case. (Gatto v. United Air Lines, Inc. (D.N.J. 2013) 2013 WL 1285285.)

The plaintiff, Frank Gatto, worked for JetBlue Airways as a ground operations supervisor. Gatto claimed that in January 2008 a set of mobile stairs operated by United Air Lines ran into him as he unloaded baggage from an aircraft. The accident allegedly left Gatto with severe injuries, rendering him totally and permanently disabled. Gatto sued United Air Lines, among others, claiming he could no longer support himself due to the accident.

In the course of the lawsuit, attorneys for United Air Lines requested authorization from Gatto to access his Facebook account to determine whether comments and photos posted to his Facebook page contradicted his claim that he was permanently disabled and unable to financially support himself. Although he initially refused, eventually Gatto — under a court order — agreed to provide United such access. United Air Lines’ attorneys printed out portions of his Facebook page. Shortly thereafter, Gatto deactivated his Facebook account. Gatto claimed he did so because he received notification from Facebook that a computer with an “unfamiliar” IP address accessed the account. By the time United Air Lines discovered the deactivation, Facebook had automatically deleted Gatto’s account. United Air Lines notified the court, seeking sanctions against Gatto for intentionally destroying relevant evidence.

The court agreed that Gatto intentionally destroyed evidence that would have damaged his case. In its written decision, the court noted a party must preserve evidence that could be reasonably foreseen as relevant to litigation. Failing to maintain such evidence, or intentionally destroying it, is known as “spoliation of evidence.” Sanctions for spoliation of evidence include dismissal of claims, fines, attorneys’ fees, and adverse inference jury instructions, among others. In Gatto’s case, the court ruled that several factors indicated he had intentionally destroyed relevant evidence, i.e., his Facebook account. The court indicated Gatto’s Facebook account was relevant to the litigation:

Plaintiff alleges to have sustained serious injuries in this personal injury action, and further alleges that said injuries have limited his ability to work and engage in social and physical activities. The Facebook information sought by defendants focused upon posts, comments, status updates, and other information posted or made by the Plaintiff subsequent to the date of the alleged accident . . . .

As a result, the court ordered that once Gatto’s case proceeded to trial, the jury would be notified that Gatto intentionally destroyed his Facebook page under the belief it would be damaging to his case.

With Facebook recently topping one billion users, information concerning the daily activities of people has become increasingly public. In the employment context, critical information concerning workers’ compensation claims, abuse of leave privileges, and disciplinary matters may be gleaned from Facebook postings. With Gatto’s case in mind, employers may consider notifying employees subject to investigation in such matters of their duty to preserve relevant social networking accounts to avoid adverse consequences resulting from spoliation of evidence.

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