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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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Spoliation is <a href="http://www.thefreedictionary.com/spoliation" target="_blank" rel="noreferrer noopener">defined</a> as "intentional alteration or destruction of a document" that could have been used as evidence in litigation. &nbsp;Destroying a document in this way is abhorrent to our adversarial legal system, because it deprives the parties and the court of the information necessary to learn the truth about the issues in the case. &nbsp;As social media evidence has continued to play an increasingly important role in litigation, so too have courts been more willing to consider the deletion of such information to be spoliation, and to punish it accordingly.

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The most recent example comes from <a href="http://augmentedlegality.wnj.com/wp-content/uploads/2013/03/2013-DNJ-Gatto-spoliation.pdf" target="_blank" rel="noreferrer noopener">Gatto v. United Air Lines, Inc.</a>, decided on March 25, 2013 by the U.S. District Court in New Jersey. &nbsp;The plaintiff there, Frank Gatto, was a ground operations supervisor for Jet Blue Airways. &nbsp;He claims that, while he was unloading bags from an airplane, a nearby United plane bumped a staircase into him, causing him a number of injuries. &nbsp;As in virtually every personal injury case these days. defense counsel very quickly sought production of Gatto's social media information, looking for posts that were inconsistent with his alleged injuries. &nbsp;That was in July 2011.<a href="http://augmentedlegality.wnj.com/wp-content/uploads/2013/03/2013-DNJ-Gatto-spoliation.pdf"></a>

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Gatto signed releases allowing United's lawyers to get his data from all sorts of websites--even PayPal--but not Facebook. &nbsp;This, of course, piqued the lawyers' interest even further, and there was additional motion practice designed to force disclosure of the account. &nbsp;On December 5, 2011, Gatto changed his Facebook password and gave it to the lawyers so that they could access his account. &nbsp;One of the defense lawyers used the password and managed to see part of the account, but the other defendant did not. &nbsp;This caused Facebook to send Gatto a security alert that his account had been accessed by an unfamiliar IP address. &nbsp;Apparently, Gatto responded by deactivating the account. &nbsp; On January 20, 2012, his lawyer notified the defense counsel that the account no longer existed and could not be retrieved.

A motion for spoliation sanctions followed. &nbsp;There was some debate as to whether Gatto affirmatively deleted the accout, or merely deactivated and failed to reactivate it. &nbsp;The court was even willing to give Gatto the benefit of the doubt on this point, and therefore declined to punish him with monetary sanctions. &nbsp;Nevertheless, the court agreed to give the jury an "adverse inference" instruction, which&nbsp;permits a jury to infer from that the fact that a document was not produced or destroyed that Gatto withheld it "out of the well-founded fear that the contents would harm him." &nbsp;In other words, that the evidence would have contradicted his physical injury claims. &nbsp;After all, Gatto knew for at least five months that opposing counsel wanted the information. &nbsp;The account was under his control and "clearly relevant" to the litigation. &nbsp;Therefore, regardless of Gatto's intent in destroying the data, he bore responsibility for doing so.

An even worse example of spoliation comes from the case <a href="permits a jury to infer that the fact that a document was not produced or destroyed is &quot;evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.&quot;" target="_blank" rel="noreferrer noopener">Allied Concrete Co. v. Lester</a> (Vir. Supreme Ct. Jan. 10, 2013). &nbsp;This was also an injury case, except it was filed by a man, Isaiah Lester, whose wife Jessica was killed in an auto accident. &nbsp;So &nbsp;the information on his Facebook page certainly did not contradict the nature of the injuries that he claimed. &nbsp;They did, however--at least in the judgment of his attorney--cast him in a less-than-sympathetic light in the jury's eyes. &nbsp;Specifically, his Facebook account included a photo of Lester "holding a beer can while wearing a T-shirt emblazoned with 'I ♥ hot moms.'"

Sensitive to the use of social media evidence to discredit litigants, Lester's attorney told him the next day to "clean up" his Facebook and MySpace accounts by deleting these and other pictures, because&nbsp;"we don't want any blow-ups of this stuff at trial." &nbsp;Lester deleted the accounts, and his attorney's office then signed discovery responses denying that he had any such accounts.

After all of this came out during depositions, the Court gave the jury an adverse inference instruction. &nbsp;Given the obviously willful nature of the destruction, moreover, the court imposed whopping monetary sanctions--$180,000 against Lester personally and $542,000 against his attorney.

These cases are stark warnings of the consequences for deleting social media evidence that may be relevant to litigation. The exact boundaries around what needs to be preserved, and when, will need to be fleshed out by future cases. &nbsp;For example, both of these cases were fairly extreme instances of parties deleting entire accounts when they obviously should have known better. &nbsp;What about deleting specific posts or pictures? &nbsp;What about deleting it before a lawsuit is filed? &nbsp;These sorts of questions will need to be answered case by case, although there is plenty of precedent from cases in other contexts that can provide guidance.

But one thing is certain: now that courts are savvy to the importance of this evidence, parties will not be able to get away with claiming that they deleted the accounts out of ignorance.

This content has been added to Chapter 20.A of Wassom on Social Media Law, my ever-evolving e-treatise on the law of social media.

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Augmented Legality

Emerging Media and Technologies

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Brian D. Wassom

Information Technology Transactions

Delete at Your Own Risk: Spoliation of Social Media Evidence

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Delete at Your Own Risk: Spoliation of Social Media Evidence

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