Injury Case Will Suffer From Facebook Deletion

     NEWARK, N.J. (CN) – United Airlines won an “adverse inference” jury instruction as it fights injury claims from a man who deleted his Facebook account to hide evidence.
     Frank Gatto said he was working for United in January 2008 when he was injured at John F. Kennedy International Airport. While unloading baggage from an aircraft, he was allegedly struck by a set of fuel stairs owned by Allied Aviation Services.
     The accident allegedly left Gatto with a torn rotator cuff, torn medial meniscus and back injuries. He claims to be permanently disabled and says the injury “limits his physical and social activities.”
     After Gatto sued United Airlines and Allied Aviation Services, the defendants sought discovery access to Gatto’s social networking and online accounts. In December 2011, the magistrate judge presiding over the case ordered Gatto to change his Facebook password to provide such access.
     Facebook meanwhile refused to provide certain information related to Gatto’s account to United, citing concerns about the Federal Stored Communications Act. The social networking website instead advised that Gatto download the entire contents of his account.
     On Dec. 16, 2011, just 11 days after having changed the password, Gatto deactivated his Facebook account and Facebook automatically deleted the account 14 days later, making its contents irretrievable.
     During its short period of access, counsel for United printed some pages of Gatto’s Facebook page. The airline and Allied Aviation Services told the court that comments and photographs from those pages contradict Gatto’s claims and deposition testimony.
     They asked the court to award spoliation sanctions by instructing the jurors to draw an “adverse inference” from Gatto’s deactivation of his Facebook account.
     Though U.S. Magistrate Judge Steven Mannion agreed last week that the instruction is warranted, he refused to make Gatto pay the defendants’ legal fees and other expenses related to the motion.
     The defendants had claimed that the Facebook information “constitutes discoverable evidence relevant to plaintiff’s claims for damages and overall credibility,” according to the ruling.
     “Litigants in federal court have a duty to preserve relevant evidence that they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation, and the court may impose sanctions on an offending party that has breached this duty,” Mannion wrote.
     To grant the adverse inference instruction, Mannion said he considered whether “(1) the evidence was within the party’s control; (2) there was an actual suppression or withholding of evidence; (3) the evidence was destroyed or withheld was relevant to the claims or defenses; and (4) it was reasonably foreseeable that the evidence would be discoverable.”
     “The deletion of plaintiff’s Facebook account clearly satisfies the first, third, and fourth of the aforementioned factors,” he wrote.
     “The Facebook information sought by defendants focused upon posts, comments, status updates, and other information posted or made by the Plaintiff subsequent to the date of the alleged accident, as such information would be relevant to the issue of damages,” the 11-page ruling continued.
     Mannion also noted that the defendants made their first request for access to Gatto’s Facebook account information “as early as July 21, 2011, nearly five months before plaintiff deactivated his Facebook account.”
     “Accordingly, it is beyond dispute that plaintiff had a duty to preserve his Facebook account at the time it was deactivated and deleted,” the ruling states.
     Mannion also noted that the “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.”

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