It has been almost 10 years since people first heard the word “Facebook.” Since then, Facebook has helped transform not only the way we communicate but also our culture. Not surprisingly, then, Facebook has transformed the way lawyers litigate cases. Demanding copies of, or access to, an adversary’s Facebook page has become commonplace. Copies of Facebook pages are commonly sought in personal injury, employment discrimination, and other cases where the existence and causation of physical and emotional injuries are at issue. Whether photos and posts on a Facebook page actually have an impact on a jury is an open question. But as two recent cases confirm, one thing is clear: Courts will not countenance deletion or deactivation of a Facebook page.
The Duty to Preserve Electronically Stored Information
A Facebook page is a form of electronically stored information (ESI) and, as such, falls within the rules concerning the preservation and spoliation of ESI. See, e.g., Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013).
A litigant must preserve a Facebook page or any other form of ESI—in other words, ensure it is not deleted—if it is “relevant” to a case. Relevance is not hard to establish. It merely requires proof that “information . . . is relevant to the claims or defenses of any party, or . . . is relevant to the subject matter involved in the action.” Apple Inc. v. Samsung Elecs. Co. (Apple I), 881 F. Supp. 2d 1132, 1137 (N.D. Cal. 2012), rev’d on other grounds, Apple Inc. v. Samsung Elecs. Co. (Apple II), 888 F. Supp. 2d 976 (N.D. Cal. 2012).
The duty to preserve ESI arises as soon as litigation has commenced. It may arise even sooner than that, if the party with the ESI has notice that it may be relevant to future litigation. Apple I, 881 F. Supp. 2d at 1136; Rimkus Consulting Grp. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010). Courts have acknowledged, however, that trying to determine when precisely a duty to preserve has arisen in a particular instance may be difficult. Rimkus, 688 F. Supp. 2d at 613 (“It can be difficult to draw bright-line distinctions between acceptable and unacceptable conduct in preserving information and in conducting discovery, either prospectively or with the benefit (and distortion) of hindsight.”). But over the years, the courts have created some hard-and-fast rules. A duty to preserve attaches once a party has met with an attorney and decided to bring a lawsuit or when a person is accused by an adversary of wrongdoing. Apple I, 881 F. Supp. 2d at 1134; Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72–73 (S.D.N.Y. 1991); see also Bayoil, S.A. v. Polembros Shipping Ltd., 196 F.R.D. 479, 483 (S.D. Tex. 2000). In the employment context, the duty has been held to arise as soon as an employee files a charge of discrimination with an administrative agency. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216–17 (S.D.N.Y. 2003).
Culpable State of Mind
If a Facebook page, or some of its content, is deleted, sanctions are not automatic. Instead, the adversary must still prove two more elements. First, the litigant must prove the deletion occurred with a “culpable state of mind.” There is a variety of culpable states of mind, which run the gamut from the worst—bad faith, recklessness, and willfulness—to something less serious—conscious disregard—to the least culpable—gross negligence and negligence. Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., 685 F. Supp. 2d 456, 465 (S.D.N.Y. 2010), rev’d on other grounds, Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012). Bad faith is limited to where a party has intentionally deleted ESI so that it cannot be used in litigation. See, e. g., Rimkus, 688 F. Supp. 2d at 644. Gross negligence and negligence include failing to take steps that might have prevented the destruction of ESI. Pension Comm., 685 F. Supp. 2d at 465; see also Apple I, 681 F. Supp. 2d at 1147 (holding that the continued routine destruction of emails after a litigation hold had been issued constituted “conscious disregard”). Whether, in a particular case, what a party did was negligent or grossly negligent will depend on the facts. Pension Comm., 685 F. Supp. 2d at 465.
In addition to culpability, there must be prejudice from the loss of evidence. If there is a bad-faith destruction of ESI, relevance and prejudice are presumed. Rimkus, 688 F. Supp. 2d at 616. Some courts go one step further, allowing (but not requiring) a presumption of prejudice in instances of gross negligence. Id.; Pension Comm., 685 F. Supp. 2d at 467. But for mere negligent destruction of ESI to be prejudicial, the party seeking sanctions must establish that his or her ability to prove the case or defend the claim has been prejudiced by the destruction of the ESI. GenOn Mid-Atl., LLC v. Stone & Webster, Inc., 282 F.R.D. 346, 353 (S.D.N.Y. 2012); Pension Comm., 685 F. Supp. 2d at 467. In arguing prejudice, the party cannot rely on mere generalities. He or she must instead show that what was destroyed was relevant. Rimkus, 688 F. Supp. 2d at 617. As one court explained,
[w]hile requiring the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the party seeking relief has some obligation to make a showing of relevance and eventually prejudice, lest litigation become a “gotcha” game rather than a full and fair opportunity to air the merits of a dispute.
Pension Comm., 685 F. Supp. 2d at 468.
Adverse Jury Instructions and Other Sanctions
Once the party seeking sanctions has satisfied his or her burden of proof, the judge decides what sanction is appropriate. In doing that, the court must base its decision on factors, including punitive (penalizing the party responsible for the spoliation) and remedial (putting the party prejudiced by the spoliation back to where he or she would have been but for the spoliation). See Apple I, 881 F. Supp. 2d at 1136. Most common among the sanctions is an adverse jury instruction. The types of adverse jury instructions vary. Id. at 1150. As one court explained,
[i]n its most harsh form, when a spoliating party has acted willfully or in bad faith, the jury can be instructed that certain facts are deemed admitted and must be accepted as true. At the next level, when a spoliating party has acted willfully or recklessly, a court may impose a mandatory presumption. At the other end of the spectrum, the least harsh instruction permits (but does not require) a jury to presume that the lost evidence is both relevant and favorable to the innocent party. If it makes this presumption, the spoliating party’s rebuttal evidence must then be considered by the jury, which must then decide whether to draw an adverse inference against the spoliating party.
Id. at 1149 (footnotes, citations, and internal quotation marks omitted).
Two Recent Adverse Instruction Cases Involving Facebook Pages
In Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013), a personal injury lawsuit, the defendants sought information from the plaintiff concerning his online activity, demanding, among other things, an authorization for the release of his Facebook page. The plaintiff provided the defendants with everything but the Facebook authorization but, later, at a court conference, provided defense counsel with his password for the Facebook account. Defense counsel subsequently accessed the Facebook account, and Facebook informed the plaintiff that his page had been accessed by an unauthorized user. A week later, the plaintiff deactivated his account, and 14 days later, Facebook, following its procedures, deleted the plaintiff’s postings and photographs.
The defendants subsequently sought an adverse inference instruction for the loss of the Facebook page. Analyzing the factors discussed above, the court quickly concluded that three of the four factors for an adverse inference instruction had been met: (1) The plaintiff had control over his account; (2) the Facebook page was relevant to the litigation because there were photos and postings relevant to the plaintiff’s claim he was disabled; and (3) the plaintiff could reasonably foresee that the Facebook information would be sought by the defendants. The only question was whether the plaintiff had suppressed evidence. He claimed he had not. He argued that he had acted reasonably in deactivating the account because he believed his Facebook page had been hacked (in fact, it had been accessed by defense counsel). He also argued that it had been Facebook, not he, who had deleted the page and, hence, had destroyed the evidence. The court was unconvinced by the plaintiff’s arguments:
Even if Plaintiff did not intend to permanently deprive the defendants of the information associated with his Facebook account, there is no dispute that Plaintiff intentionally deactivated the account. In doing so, and then failing to reactivate the account within the necessary time period, Plaintiff effectively caused the account to be permanently deleted. Neither defense counsel’s allegedly inappropriate access of the Facebook account, nor Plaintiff’s belated efforts to reactivate the account, negate the fact that Plaintiff failed to preserve relevant evidence. As a result, Defendants are prejudiced because they have lost access to evidence that is potentially relevant to Plaintiff’s damages and credibility. In light of all of the above, a spoliation inference is appropriate.
Id. at *4 (internal citations omitted).
The court therefore granted the defense motion for an adverse jury instruction.
In Allied Concrete Co. v. Lester, 285 Va. 295, 736 S.E.2d 699 (Va. 2013), the plaintiff sued the defendants after his wife was killed and he was injured in an auto accident involving a truck that had been speeding and crossed a dividing line. The defendants sought copies of all information and photographs from the plaintiff’s Facebook page. The defendants included with their discovery request a screenshot of a photograph of the plaintiff from the page. In the photo, the plaintiff was wearing a T-shirt saying “I ♥ hot moms.” Id. at 302, 736 S.E.2d at 702.
The next day, the plaintiff’s attorney sent an email to his paralegal, instructing her to tell the plaintiff to “clean up” his Facebook page. Id. at 302, 736 S.E.2d at 702. She did what she was told, sending the plaintiff an email instructing him to “clean up” his Facebook page and a follow-up email stating that “[w]e do NOT want blow ups of other pics at trial.” Id. at 302, 736 S.E.2d at 702. In response, the plaintiff deactivated his Facebook page and responded to the discovery request by stating he did not have a Facebook page. After a motion to compel was filed by the defendants, the plaintiff reactivated his Facebook page, deleted 16 photos, and produced copies of what was left to the defendants. Later, after the defense hired a consultant who confirmed that the 16 photos had been deleted, the plaintiff produced those photos, too.
The defendants also served a subpoena on the plaintiff’s law firm for copies of communications between the plaintiff and the law firm regarding the Facebook account. The plaintiff’s attorney provided a privilege log but left out the critical “clean up” email he sent his paralegal.
The court sanctioned the plaintiff and his attorney for the fees and costs the defendants had incurred in obtaining copies of the Facebook page and the 16 deleted photos. The plaintiff was ordered to pay $180,000, the plaintiff’s attorney $542,000. The judge also gave the following adverse instruction to the jury at trial:
The Court instructs the jury that the Plaintiff, Isaiah Lester, was asked in discovery in this case to provide information from his Facebook account. In violation of the rules of this Court, before responding to the discovery, he intentionally and improperly deleted certain photographs from his Facebook account, at least one of which cannot be recovered. You should presume that the photograph or photographs he deleted from his Facebook account were harmful to his case.
Id. at 304, 736 S.E.2d at 703.
As the Gatto and Lester cases make clear, the consequences for failing to preserve a Facebook page while litigation is pending can be significant. And as the Gatto court confirmed, courts will not be sympathetic to nuanced arguments regarding whether it was the litigant or Facebook that actually deleted the page. But the good news for the trial lawyer is it is not difficult to comply with the rules when it comes to preservation of a Facebook page. Simply instructing the client not to change, alter, or delete the Facebook page is all that is required. Finally, if Lester is any guide, the trial lawyer can be at least cautiously optimistic that, regardless of how bad the Facebook page seems to be to the case, the jury may not be swayed by it when reaching its verdict. Despite apparently offensive photographs and a jury instruction that the plaintiff had tried to delete them to avoid them coming to light at trial, the jury still awarded the plaintiff approximately $9 million for his wife’s death and for his injuries.
Keywords: litigation, discovery, electronically stored information, duty to preserve, preservation, spoliation
Copyright © 2013, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).