Mannion, Steven C., United States Magistrate Judge
In personal injury action, trial court granted defendants’ motion for spoliation sanctions after finding plaintiff intentionally deleted his Facebook account and awarded an adverse inference instruction against plaintiff.
Plaintiff, allegedly injured within the scope of his employment by defendants, claimed that he was rendered permanently disabled. Plaintiff also claimed that his ability to engage in physical and social activities was limited as a result of the injury. Defendants disputed the extent of plaintiff’s injuries and believed evidence on plaintiff’s Facebook account would prove this. Defendants subsequently sought production of the contents of plaintiff’s Facebook account.
Plaintiff agreed, changed his password, and supplied defense counsel with this new password. After changing the password, defense counsel accessed plaintiff’s account. As a result of this access, Facebook emailed plaintiff informing him of the access from a different IP address. Defense counsel informed plaintiff’s counsel by email that there was no need to worry because defense counsel had accessed the account from the unknown IP. A day later, plaintiff deactivated his Facebook account and this subsequently led to the account’s data being lost. At the time, Facebook’s policy was to delete any account permanently within 14 days of a user deactivating it. Plaintiff claimed that he did this because he had been “hacked” on numerous prior occasions.
The court stated the law on spoliation and the factors considered in determining whether an adverse inference instruction is warranted. It noted that plaintiff satisfied clearly three of these factors:
1. Plaintiff was in control of his Facebook account;
2. Plaintiff’s Facebook account was clearly relevant to the litigation; and
3. It was reasonably foreseeable that Plaintiff’s Facebook account would be sought in discovery.
The court held that an adverse inference instruction was appropriate:
[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.
Finally, the court determined that attorney’s fees and costs were not warranted because the evidence of destruction did not “appear to be motivated by fraudulent purposes or diversionary tactics, and the loss of evidence will not cause unnecessary delay.”
v.
UNITED AIR LINES, INC., ALLIED AVIATION SERVICES, INC., and JOHN DOES 1-10 (fictitious names), Defendant
Counsel
J. Silvio Mascolo, Rebenack Aranow & Mascolo LLP, New Brunswick, NJ, for Plaintiff.Jeffrey W. Moryan, Stacie Lynn Powers, Laurie Beth Kachonick, Connell Foley LLP, Roseland, NJ, Kenneth Joseph Gormley, Locke Lord Bissell & Liddell LLP, New York, NY, for Defendant.