As more information is stored on social media accounts, it’s imperative that legal teams ensure proper preservation of social media data. As this case shows, social media information has become a very common source for relevant data, which legal teams must have a plan for preserving.
In this personal injury case involving the plaintiff, an employee of the defendant, a truck driver, getting into a car crash. The plaintiff subsequently asserted tort claims against the defendant based on a theory of respondeat superior. The defendant moved for sanctions against the plaintiff for his “alleged spoliation of electronically stored evidence, specifically his social media accounts.
From the outset of this case, the two sides were “frustrated with each other.” The plaintiff misrepresented multiple times whether he had a Facebook account, how many Facebook accounts he had and if those accounts were activated pre- and post-accident. Based on this behavior the defendant wanted the plaintiff to be sanctioned for spoliation of the Facebook account data.
The plaintiff objects to the spoliation sanction and offered an alternative remedy of an information resolution before defendant files it’s motion. The plaintiff contended that the Facebook data may be retrievable. The defendant refused and motioned the court for spoliation sanctions.
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Several lessons from this case: first, courts do not appreciate lawyers sniping at each other. Second, it is clear by now that relevant Facebook posts are discoverable, especially in Personal injury cases. Third, there is a difference between deactivating a Facebook account (which thus can be reinstated with no loss of data) and deleting the account. Finally, this is another example of courts relying on the Rule 26(g) certification as another source to remedy discovery violations.