Federal Judge in New Jersey Issues Adverse Inference Instruction Due to Plaintiff’s Failure to Preserve Facebook Information in Personal Injury Action

Recently, a federal judge in New Jersey imposed sanctions for a personal injury plaintiff’s failure to preserve his Facebook account. The Court concluded that it was “beyond dispute that Plaintiff had a duty to preserve his Facebook account,” and granted the defendant’s motion for an adverse inference instruction.

The plaintiff allegedly suffered serious injuries at work, which purportedly left him permanently disabled, unable to work, and limited in his “physical and social activities.” The defendants sought the plaintiff’s Facebook information, alleging it related to damages, but the plaintiff declined to provide an authorization form for Facebook. During a settlement conference, the Magistrate Judge ordered the plaintiff to execute the appropriate form, and the plaintiff agreed to change his account password to allow defense counsel to access his Facebook page. Defense counsel then accessed his account and printed portions of the plaintiff’s Facebook page.

Days later, plaintiff’s counsel told defense counsel that the plaintiff had received a Facebook alert indicating that an unknown IP address in New Jersey accessed his account. Defense counsel confirmed that the plaintiff’s account was accessed, and the parties disagreed as to whether defense counsel was able to directly access the account. Defense counsel also advised that the defendants served a subpoena on Facebook, enclosing the authorization form executed by the plaintiff, to obtain the plaintiff’s account information.

Facebook objected to the subpoena, citing the Federal Stored Communications Act, and recommended that the plaintiff download his Facebook information and provide it to defense counsel. The parties disputed whether the plaintiff agreed to take these steps. Weeks later, defense counsel learned that the plaintiff deactivated his Facebook account, and then Facebook automatically deleted his account fourteen days later, so all account information was lost.

The defendant requested an adverse inference instruction or monetary sanctions. The Magistrate Judge applied the four factor test for sanctions as set forth by the Third Circuit in Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994). The Magistrate Judge found that the deletion of the Facebook account “clearly” satisfied the first, third, and fourth Schmid factors: the Facebook information was within the plaintiff’s control as the accountholder; the Facebook account was relevant because the plaintiff put his social and physical activities at issue in the litigation, i.e., the “posts, comments, status updates, and other information posted or made by the Plaintiff subsequent to the date of the alleged incident” would bear upon damages; and it was reasonably foreseeable that Facebook information would be sought because the defendant requested the social media information months before the plaintiff deactivated his account, and the parties previously discussed the Facebook information during a settlement conference with the Court. Consequently, the Magistrate Judge concluded that “it is beyond dispute that Plaintiff had a duty to preserve his Facebook account at the time it was deactivated and deleted.”

With respect to whether the plaintiff actually suppressed or withheld the Facebook information, the plaintiff argued that he was involved in a “contentious” divorce and his Facebook account had been “hacked into” many times before, so he acted reasonably when he deactivated his account after receiving the Facebook notification. The plaintiff also argued that he did not mean to permanently delete his account, only deactivate it, and that it was deleted automatically due to Facebook policy; he also alleged that he unsuccessfully attempted to restore the account. The Court reasoned that even if the plaintiff did not intend to delete his account, his intent was of no matter because the spoliated evidence was relevant, and “there is no dispute that Plaintiff intentionally deactivated the account.” The Court concluded that the plaintiff “failed to preserve relevant evidence” despite the alleged unauthorized access by defense counsel and the plaintiff’s unsuccessful restoration efforts. Because the defendants were prejudiced by the failure to obtain Facebook information that was relevant to damages and credibility, the adverse inference instruction was appropriate. The Court did not find, however, that an award of fees and costs was appropriate.

Attorneys, pay attention: if your client uses Facebook, it must be maintained like any other electronically-stored information or hard copy document — particularly if its import is specifically sought in discovery or discussed with the Court. This is not the first time that a federal judge in New Jersey has awarded sanctions for failure to preserve social media, and it likely will not be the last.

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