June 26, 2013 Articles

Spoliation Considerations When Dealing with Social Media Evidence

By Kristin Caballero Tiffany

Spoliation generally refers to "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably for[e]seeable litigation." MOSAID Techs., Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 335 (D.N.J. 2004). A litigant is under a duty to preserve what it knows or reasonably should know will likely be requested in litigation. Remedies for spoliation vary upon the nature of the spoliation and the jurisdiction, but may include an adverse-inference instruction, dismissal of the action, judgment in a party's favor, fines, and attorney fees.

Spoliation in the context of social media is an evolving area of law and an area of concern for attorneys and litigants. Large numbers of individuals as well as businesses use social media on a daily basis. The most popular forms of social media include Facebook, Twitter, LinkedIn, Google Plus, and MySpace. The very nature of social media is fast changing. Users can post and delete pictures and messages in a matter of seconds. The ease and speed at which this can be done proves troublesome when litigation arises or is reasonably anticipated. As a result, attorneys and litigants must be aware of what exactly needs to be preserved and how to preserve such evidence.

Prior to and during litigation, attorneys must be aware of potential issues related to spoliation and must make sure that their clients are aware of their obligation to preserve evidence. Below are a few recent cases addressing these issues and concerns for attorneys when dealing with evidence obtained from social media.

KatiRoll Co., Inc. v. Kati Roll & Platters, Inc.
2011 U.S. Dist. LEXIS 85212 (D.N.J. Aug. 3, 2011)
The plaintiff restaurant commenced an action for trademark infringement, trade-dress infringement, and unfair competition against a competitor restaurant that sold the same type of food ("Kati Roll"), and the restaurant's owner. The plaintiff alleged that the defendant infringed upon its trademark and trade dress, which included a similar orange-themed color scheme inside the restaurant on the exterior signage, the menus, and same store layout.

The court found that the plaintiff was entitled to a preliminary injunction on its trade-dress claims but that it had not carried its burden on the trademark-infringement claim. The plaintiff then brought a motion for spoliation sanctions and to compel discovery, alleging that the defendants purposefully and deliberately destroyed discoverable information. The plaintiff sought spoliation sanctions relating to Facebook pages of the defendant restaurant owner and documents from the restaurant's website.

The court set forth the law on spoliation stating that parties to litigation often are required to preserve litigation evidence and this duty "arises when the party in possession of the evidence knows that litigation by the party seeking the evidence is pending or probable and the party in possession of the evidence can foresee the harm or prejudice that would be caused to the party seeking the evidence if the evidence were to be discarded." In determining whether spoliation sanctions are appropriate, the court looks to the degree of fault of the party who altered or destroyed the evidence and the degree of prejudice suffered by the controlling party. Sanctions for spoliation can be as severe as dismissal of a claim or a judgment in favor of the prejudiced party. In less severe cases, the court may issue an adverse inference or require the culpable party to pay attorney fees and costs.

To qualify for a spoliation inference, the movant must show: (1) the evidence in question was within the party's control; (2) it appears that there has been actual suppression or withholding of the evidence; (3) the evidence destroyed or withheld was relevant to claims or defenses; and (4) it was reasonably foreseeable that the evidence would later be discoverable. There is a split in the District of New Jersey as to the fault required to support the second factor. Some courts have required intentional conduct while others have held that an inference is justified where the party possessing the evidence destroyed it negligently.

The plaintiff also requested an adverse inference because the restaurant owner changed his profile picture on Facebook by removing a picture displaying the infringing trade dress and a photograph of the restaurant, without preserving that evidence. During the course of the litigation, the restaurant owner repeatedly changed the profile picture and each time this was done, the change cascaded throughout Facebook so all posts (including prior posts) would now show the new picture. The defendants argued that there was no spoliation because the plaintiff was in possession of all relevant posts prior to the change. The defendants further argued that a spoliation inference was not proper because the website was public and the plaintiff could have printed the posts himself.

The court rejected this argument as public websites are in control of the parties who own then. Moreover, given that the defendants had a discovery obligation to produce the photos and that only the defendants knew when the website would be changed, it is more appropriate for the defendants to have that burden and, thus, the court found that the defendant was in control.

As to whether the defendant should have foreseen that the evidence would be discoverable and should be preserved, the court noted that changing Facebook profile pictures is a common occurrence and it was not surprising that the defendant changed his profile picture during the pendency of litigation. Moreover, even though he was on notice that he had to preserve evidence, it was not clear that his profile picture would undermine discoverable evidence. The court determined that the spoliation was unintentional but that the plaintiff was somewhat prejudiced by the defendant's conduct, and while a spoliation inference was not warranted, the court ordered that defendant to coordinate with plaintiff’s counsel to change the picture back to the allegedly infringing picture for a brief period of time so that the plaintiff may print relevant posts. This action would not be considered an additional act of infringement. Thereafter, the defendant may change his profile picture back to his noninfringing picture.

Lester v. Allied Concrete Co.
83 Va. Cir. 308 (Va. Cir. Ct. 2011)
reversed on other grounds, No. 120074 and 120122 (Va., Jan. 10, 2013)
The plaintiff, as administrator of his wife’s estate and on his own behalf, brought an action against the defendants for personal injuries and wrongful death arising out of an automobile accident that resulted in his wife’s death. Prior to trial, several discovery disputes arose that were the subject of a series of pre- and post-trial motions, including a motion for sanctions against the plaintiff and his attorney for the spoliation of evidence.

The initial dispute arose out of the defendants' request for production of documents and interrogatories seeking discovery relating to the plaintiff’s Facebook account. The defendants attached a photo of the plaintiff from his Facebook page, showing him clutching a beer can and wearing a shirt emblazoned with “I [heart] Hot Moms” and in the company of other young adults. That evening, the plaintiff's counsel notified his client via email about the discovery request and the next day, instructed his paralegal to tell the client to “clean up” his Facebook because “we don’t want blowups of this stuff at trial.”

When the requested discovery was not immediately produced, the defendants moved to compel production. Ultimately, after seeking advice from another lawyer at his firm, the plaintiff's counsel produced screen shots of the requested Facebook pages in supplemental responses. The plaintiff's counsel, however, later claimed that he was unaware at the time he served the supplemental responses that the plaintiff had deleted 16 photos from the account.

The court deferred ruling on the motion to compel pending the defendants’ review of the supplemental response. At his deposition, the plaintiff testified under oath that he had never deactivated or taken down his page. The plaintiff's emails and later testimony showed that this statement was false, but the plaintiff continued to deny deactivation during his testimony at trial.

Interestingly, the jury ultimately saw the "I [heart] Hot Moms" t-shirt photo, and received a typical spoliation instruction permitting them to infer that the evidence deleted would have been harmful to the plaintiff's case. They awarded the plaintiff and his in-laws (also statutory beneficiaries of the decedent's estate), a total of approximately $10.5 million in damages (approximately $8.5 million to the husband and $2 million to the decedent's parents). In post-trial hearings, the court took up motions for sanctions against the plaintiff and his counsel for the discovery violations and spoliation.

Ultimately, the court found that the plaintiff's counsel violated Va. Sup. Ct. R. 4:1(g) by stating in response to one of the specific document requests that the plaintiff did "not have a Facebook page on the date this is signed, April 15, 2009." The court also found that the plaintiff's counsel violated Rule 3.4(a) of the Virginia Rules of Professional Conduct, which mandates that an attorney may not counsel or assist his or her client to "alter, destroy or conceal a document or other material having potential evidentiary value for the purpose of obstructing a party's access to evidence." The court imposed sanctions in the form of reasonable expenses, including reasonable attorney fees, incurred by the defendants because of this violation, which amounted to $722,000. The court ordered the plaintiff's counsel to pay $542,000 of that amount and the plaintiff to pay the remaining $180,000.

Additionally, the defendants sought monetary sanctions against the plaintiff for deactivating his Facebook account; deleting photos off of his Facebook account; misrepresentations made during depositions; and misrepresentations made while testifying at trial. The court held that because this conduct was known to the court and the defendants prior to trial and related solely to the issue of damages and was mitigated by the curative jury instructions, they did not affect the validity of the verdict as to liability. Finally, the court noted that it would refer the allegations of perjury to the commonwealth's attorney for the city of Charlottesville for review and consideration, and the ethics violations to the Virginia State Bar.

On the issue of damages, the trial court ordered a remittitur of the wrongful-death award to the husband from $6.5 million to $2.1 million on the ground that the award was grossly disproportionate to the $1 million award to each of the decedent's parents. The court suggested that the jury award was motivated by bias or sympathy rather than a fair and objective consideration of the evidence, but also noted that the defendants' strategy to attack the credibility of the plaintiff did not produce the intended result:

[Plaintiff's counsel] injected passion and prejudice into the trial, shouting objections and breaking into tears when addressing the jury. Most of [plaintiff's counsel's] actions in this respect were suffered without objections from defense counsel, who focused their defense upon the denial of liability . . . and upon aggressive, but obviously ineffectual, attacks on [plaintiff's] credibility and character. This defense strategy produced the extreme opposite of its desired effect, serving to create additional passion and sympathy for [plaintiff] and anger towards the Defendants.

On appeal, the Virginia Supreme Court affirmed the trial court's denial of the defendants' motion for new trial, but ironically reversed the remittitur on the ground that the trial court abused its discretion in reducing the plaintiff's damages to the same level as the damages awarded to the decedent's parents, as the relationship between the decedent and her husband is different from her relationship with the parents. The dissent criticized the majority's reversal of the remittitur as chipping away at the trial court's inherent discretion to assess whether a jury was motivated by passion or prejudice in awarding damages.

Mitchell v. El Conquistador Resort
2012 U.S. Dist. LEXIS 67064 (D.P.R. May 14, 2012)
The plaintiffs, a married couple, commenced litigation for personal injuries allegedly sustained by the wife when she tripped and fell at a restaurant located in a hotel in Puerto Rico. The plaintiff alleged lumbar-disc herniation, closed head injury, severe damage to her nerves and nervous system, as well as other injuries. At her deposition, she claimed that her alleged injuries impeded her ability to exercise and limited her physical activities with her children.

The defendants hotel and restaurant moved to dismiss, alleging fraud on the court and spoliation of evidence. The defendants argued that the plaintiffs lied under oath about their travels and removed important pictures from the husband's profile on Google Plus, a social-networking website. According to the defendants, prior to preparing a joint proposed pretrial order, the defendants discovered the Google Plus profile which contained several photo albums. This included an album entitled "Taylor's Bat 2010," which contained about 1,000 pictures taken during the bat mitzvah of the plaintiff's daughter. The album included pictures of the plaintiff dancing in high heels and being spun around while dancing. The profile also contained a second album entitled "70th Birthday," which contained photographs of a cruise the plaintiffs took in December 2010 sailing out of Florida, which neither plaintiff disclosed during their respective depositions. Two photos, taken approximately one year after her injury, depicted the plaintiff descending a zip line and smiling. Shortly after producing the photographs in discovery and to the court at a pretrial conference, the defendants checked the Google Plus profile and discovered that two albums had been deleted from the site. The defendants moved for dismissal or sanctions, arguing that the removal of photographs and misleading testimony regarding the plaintiff's post-injury travel constituted fraud on the court or in the alternative, spoliation of evidence.

The court declined to find fraud for removing the photos after already showing them to the court, stating that "[f]raud on the court 'refers to an unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter involving an officer of the court" and that "[the First Circuit has] said that perjury alone has never been sufficient' to constitute fraud on the court." The court noted that removal of photos from a social-networking site does not change the fact that the photos are known to the defendants and likely will be entered into evidence with the court.

For similar reasons, the court also rejected the defendants' spoliation argument. The court stated that cross-examination would give defendants an adequate opportunity to expose any dishonesty to the jury. The court also found that the evidence was not actually destroyed, as the pictures will still be in evidence. Thus, the court found that the plaintiffs' actions did not merit sanctions or dismissal.

As these cases demonstrate, there are numerous ethical considerations that arise when dealing with discovery and social media. The ethical rules, as well as court rules, require lawyers to be proactive and vigilant in ensuring preservation of all potentially relevant evidence from the time litigation is reasonably anticipated and throughout the litigation process. Even a negligent failure to ensure compliance places the client and lawyer at risk for significant sanctions. By the same token, lawyers must be careful in determining how to use social media at trial because aggressive trial tactics can sometimes backfire.

Keywords: litigation, mass torts, discovery, spoliation, social media

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