The internet and the dynamic and ever evolving world of social media have changed the way employees work, businesses conduct business, and lawyers obtain evidence and try cases.
In a recent New Jersey District Court ruling, U.S. Magistrate Judge Steven Mannion held that a Plaintiff had a “duty to preserve his Facebook account” as the defense would be prejudicially impacted by the loss of such evidence. Gatto v. United Airlines & Allied Aviation Services., et al., No 10CV1090 (D.N.J. March 25, 2013). In this case, Frank Gatto, a former baggage handler at Kennedy Airport, sued both United Airlines and Allied Aviation stemming from injuries he sustained on the job. Mr. Gatto claimed that when a set of stairs crashed into him in the cargo area of the plane, he was injured and left permanently disabled with his social and physical activities severely limited.
During discovery, the defendants sought legal authorization to access his Facebook account which they believed contained important evidence proving Gatto’s ability to socialize and to engage in work activity had not been diminished. When Gatto refused, a Magistrate Judge ordered him to sign an authorization providing his Facebook authorization to opposing counsel. Gatto acquiesced, but then a few days later changed his login information and deleted his account information. Despite United’s request that Gatto reactivate his account, the information they wanted had been deleted since it had been over two weeks since Gatto deactivated it. Defendant’s moved to have Gatto sanctioned by the court for the destruction of evidence that they believe would have shown that Gatto was able to socialize and travel, thereby reducing his claim for damages.
Judge Mannion ruled that the deletion constituted “spoliation of evidence,” which resulted in an adverse inference against Gatto. In other words, a party who destroys evidence relevant to a case, did so because such evidence was unfavorable to them.
In the Legislature, the N.J. State Senate Committee passed a Bill regarding NJ’s Facebook Privacy Laws. (A2878/S1915). The Bill, like its counterparts in at least five other states, provides that employers will no longer be able to require their employees to hand over personal Facebook account passwords. While this is seemingly unrelated to the Gatto case, the Senate Bill touches on the concerns that we face in this age of social media including how personal information can become public, especially during legal proceedings. Privacy laws and sharing of personal information remain at the forefront of our news. Attorneys, firms, and their clients need to be prepared for the legal repercussions that we now face because of changes in the way we live and share personal information.