In a recent decision by a federal district court in Ohio, the court admonished a plaintiff in a gender-based pay discrimination for deactivating her LinkedIn account during the pendency of the litigation after making an initial production. The court concluded that plaintiff had violated her duty to preserve pursuant to Rule 37(e), as the conduct resulted in the deletion of relevant and discoverable information that was the subject of a previous court order. The court declined to impose sanctions because plaintiff had in fact produced data from her LinkedIn account and because defendant could not demonstrate prejudice. However, the court did not let plaintiff’s offense go lightly; the court stated that plaintiff’s action was serious and inappropriate.
In Faulkner v. Aero Fulfillment Services, plaintiffs alleged gender-based pay discrimination during their employment with defendant. Pursuant to a court order, plaintiffs had to produce, among other things, the “last three years of social media information.” Plaintiff Faulkner’s counsel followed the directions on the LinkedIn website to download a full data archive in Microsoft Excel format and produced the Excel file to defendant. Subsequently, defense counsel requested the social media information in a different format, a “screenshot” format. But plaintiff’s counsel was unable to produce Ms. Faulkner’s LinkedIn information in the “screenshot” format because the account had already been deactivated. Defendant moved for sanctions under Rule 37(e), arguing that plaintiff spoliated evidence in violation of the court’s order.
The court concluded that Ms. Faulkner initially complied with her obligation to produce the entirety of her LinkedIn account by producing it in the Excel spreadsheet format, but when she subsequently deactivated the account, she “unquestionably” violated her duty to preserve potentially relevant evidence. Plaintiff’s counsel did not offer a reason for plaintiff deleting the account, and the court noted that Ms. Faulkner simply may have not understood her duty of preservation—“a duty incumbent upon her counsel to relate to her.”
Defendant also argued that it was prejudiced because it could no longer verify whether plaintiff disclosed all of the relevant data from her LinkedIn account. Defendant argued that the deleted LinkedIn account might reveal that plaintiff may have misrepresented her employment history. The court disagreed, finding that it was a remote possibility that the LinkedIn account, which was activated for less than one year and not used often, would have included prior employment history, dating back to pre-2008. Plaintiff provided other discovery responses that detailed her pre-2008 employment history, and while the existence of alternate evidence was not a “Get Out of Jail Free” card, the court determined that it was a relevant consideration. In addition, the court noted that defendant had not requested a specific form of production, and therefore, plaintiff’s actions did not violate Rule 34(b)(2)(E)(iii), which clearly states that once produced, a party “need not produce the same electronically stored information in more than one form.”
Although the court declined to impose more severe sanctions, such as monetary and/or an adverse jury instruction, the court admonished plaintiff for deleting her LinkedIn account and expressly stated that it did not condone plaintiff’s action. The court left open the possibility of imposing more severe sanctions for any further offenses. In admonishing plaintiff as a sanction pursuant to Rule 37(e), the court does not address what potential prejudice occurred to defendant as a result of the information not being able to be produced in “screenshot format,” i.e., precisely what unique information was “lost” and a result of plaintiff not taking reasonable steps to preserve the account. Because this is a prerequisite to any relief under Rule 37(e)(1) or (2), it is unclear that any sanctions were justified.
Nonetheless, it is imperative that counsel advise clients of their duty of preservation, including maintaining social media accounts, even after initial productions. Counsel should make sure to advise clients of the duty to preserve when litigation is reasonably anticipated in the form of a written litigation hold, and counsel should continue to monitor and remind litigants of the continuing obligation to preserve relevant information during the course of the litigation.