In a trademark infringement case involving two restaurants, Katiroll Company, Inc. v. Kati Roll and Platters, Inc. et al., Plaintiff sought a spoliation inference, alleging various discovery abuses involving several types of evidence including social media. Specifically, Plaintiff requested sanctions for the individual Defendant’s failure to preserve his Facebook pages in two different ways. Recognizing that Facebook users change their pages frequently given the nature of the media at issue, Chief Judge Brown of the District of New Jersey crafted a creative remedy, which was based in large part on the level of prejudice to Plaintiff.

Regarding the first Facebook issue, Plaintiff sought PDF versions of Defendant’s Facebook pages before they were taken down pursuant to Plaintiff’s take-down request. The Court declined to sanction Defendants for actions taken at Plaintiff’s request because it would be "unjust."

Plaintiff also sought a spoliation inference because the individual Defendant altered his profile picture on Facebook. The prior picture reflected the infringing trade dress of the restaurant at issue but was not preserved. The Court recited the four requirements for a spoliation inference, which the Chief Judge described as the mildest of sanctions: (1) whether the evidence was in the party’s control; (2) whether the evidence was actually suppressed or withheld; (3) whether the evidence was relevant vis-à-vis the claims or defenses at issue; and (4) whether it was reasonably foreseeable that the evidence at issue would subsequently be discoverable. The Court concluded that the most important consideration in determining what level of fault is required to support the second factor (an issue that is disputed within the District) is the degree of prejudice to the movant. Specifically, the Court concluded that a negligence standard may be appropriate if there was substantial prejudice whereas intentional conduct would be required if minimal prejudice resulted.

The Court had little difficulty finding that Plaintiff met the third requirement. It similarly found that the first requirement was met because "defendants have a discovery obligation to produce [websites]” and “only defendants knew whether the website would be changed." As for the second and fourth requirements, the Court found that, although the individual knew he had to preserve evidence, “it would not have been immediately clear that changing his profile would undermine discoverable evidence" given that a change of a profile picture "changes the picture associated with each and every post that user has made in the past.” Although the Court found that the spoliation was not intentional, the Court also determined that the loss of information was “somewhat prejudicial.” But instead of imposing an adverse inference instruction (as Plaintiff had requested), the Court directed Defendant to post the image of the allegedly infringing picture for a short period of time so that Plaintiff could then print relevant posts; thereafter, Defendant was permitted to re-post the non-infringing picture.

Katiroll demonstrates the Court’s understanding that the nature of Facebook invites changes to postings and pictures, and it teaches that the prejudice to the movant is a significant factor in determining the level of fault required before an adverse inference instruction will be imposed. Katiroll also demonstrates that courts will fashion novel remedies for spoliation in the social media context.