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Preservation of Social Media: An Ongoing Challenge for Legal Teams

Created on April 4, 2013


Director of Marketing Programs

As most have noticed, social media, like text messaging and Facebook posts, have complicated legal discovery. Outside corporate firewalls, beyond the control of internal legal and IT teams, social media data is not only difficult to identify but equally problematic to preserve when litigation is reasonably foreseeable. Similar to cases before it (see Lester v. Allied Concrete Co. (Va. Cir. Ct. 2011); Danielle Mailhoit v. Home Depot U.S.A, Inc. (C.D. Ca. Sept. 7, 2012); Thompson v. Autolive ASP, Inc. (D. Nev. June 20, 2012)), Frank Gatto v. United Air Lines (D.N.J. March 25, 2013) re-emphasizes a major problem that social media presents – how can organizations preserve it before user modification or deletion (i.e. spoliation)?

In Gatto, the court granted the defendants, United Air Lines and Allied Aviation Services, motion for an adverse inference spoliation sanction against the plaintiff, Frank Gatto, for failing to preserve his Facebook account. This personal injury action arose when the plaintiff was hit by a set of fueler stairs, which was owned and operated by one of the defendants. As a result of the incident, the plaintiff alleged multiple injuries that limited his engagement in physical and social activities.

At the start of discovery, on July 21, 2011, the defendants requested information from the plaintiff's Facebook account. The plaintiff did not respond. On December 1, 2011, during an in-person settlement conference before the Magistrate Judge Cathy Waldor, the defendants again requested a release of the plaintiff's Facebook records. Judge Waldor ordered the plaintiff “to execute an authorization for the release of documents and information from Facebook," and the plaintiff agreed to change to account password which was known between all parties. To confirm that the plaintiff's password was changed, the defendants accessed plaintiff's account and printed portions of the plaintiff's Facebook page.

On December 9, 2012, the plaintiff notified the defendants that they received an alert from Facebook that an unfamiliar IP address accessed the plaintiff's account. The defendants confirmed that they did access the plaintiff's Facebook account using the new password supplied at the settlement conference. Even though the defendants acknowledged access to the plaintiff's Facebook account from the unfamiliar IP address, the plaintiff still decided to deactivate the Facebook account on December 16, 2011.

In a surprising turn of events, on January 20, 2012, the plaintiff notified the defendants that its Facebook account information had been lost and could not be retrieved since “the account could not be reactivated because Facebook had 'automatically deleted" the account fourteen days after its deactivation." Based on the screen prints taken by the defendants, the defendants contend that the photos and posts contradicted the plaintiff's claim for damages, making them discoverable evidence. Subsequently the defendants motioned the court for spoliation sanctions, including an adverse inference instruction, due to the spoliation of the plaintiff's Facebook account.

For a court to order this instruction four factors must be satisfied:

  • (1) The evidence was within the party's control
  • (2) There was an actual suppression or withholding of evidence
  • (3) The evidence was destroyed or withheld was relevant to the claims or defenses
  • (4) It was reasonably foreseeable that the evidence would be discoverable

The court ruled that the deletion of the plaintiff's Facebook account “clearly satisfied" factors 1, 3 and 4.

  • Factor #1 – Control – The Facebook account was in the plaintiff's control since he had the authority to modify the content of the account.
  • Factor #3 – Relevance – The plaintiff had alleged multiple physical injuries, which allegedly limited his ability to work and enjoy social activities
  • Factor #4 – Foreseeable– The defendants requested the plaintiff's Facebook information nearly five months before the plaintiff deactivated his account.

According to the court, the only point of discussion surrounded factor number two, whether an actual suppression or withholding of evidence occurred. The plaintiff contended that he did not intentionally destroy evidence, which should not meet the “actual suppression" threshold. The court disagreed. Citing Mosaid v. Samsung (D.N.J. 2004), as long as evidence is relevant, “the 'offending party's culpability is largely irrelevant,' as it cannot be denied that the opposing party has been prejudiced." All the events leading up to the deletion of the plaintiff's Facebook account (deactivation of the account, failing to reactivate the account in timely manner, the defendants' access to the account) did not “negate the fact that Plaintiff failed to preserve relevant evidence." Based on these facts, the court granted the defendants' motion for an adverse instruction.

THE E-DISCOVERY BEAT'S TAKE
  • In 2012, Facebook reported 901 million active users, up from 680 million in 2010.
  • Approx. 300 million photos are uploaded to Facebook every day.
  • 3.2 billion Likes and Comments are posted daily.

As these statistics show, social media sites are still rapidly growing in popularity, making the need to preserve social media information a more likely scenario for organizations involved in litigation. Gatto highlights the need for parties to be proactive in identifying and requesting social media information before alteration or deletion occurs. The defendants in Gatto were smart enough to plan ahead and take necessary measures to prove that a spoliation sanction was warranted.

Following are steps organizations can take to prevent the spoliation of social media evidence and being on the short end of the stick (e.g. the sanctioned plaintiff's side in Gatto):

  • Conduct a Data Assessment.Organizations should conduct a comprehensive data assessment to identify what social media information is held, where it's stored and how it's generated/used within the organization. Understanding these factors is the first step to developing protocols on how social media information can be used (or defended against) in legal matters.
  • Create a Social Media Plan. There is not a one-size-fits-all approach for creating a defensible comprehensive social media plan. Each organization is different. While these policies should not be overarching restrictions of speech (i.e. not violate federal labor laws), they should be specific and include real-world examples of how they must be applied. Possible restrictions could include specifying the acceptable use of social media profiles for company use or a ban on disclosing any confidential organizational information (e.g. trade secret, IP disclosures, etc.).
  • Leverage Technology. To preserve and collect social media information, organizations can employ numerous different approaches depending on the resources available and the circumstances of the case. These approaches range from taking screen shots of a social media account to more sophisticated techniques, like creating a publisher application programming interface (API) that enables data collection directly from the social media site.

To learn more about case law surrounding social media and e-discovery read, “Discovering Social Media: No Place for Privacy," published in ILTA's Peer-to-Peer quarterly magazine, here.

Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.

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