By Francis M. Smith
Do you think that what you post on Facebook is only accessible by your friends? Believe me, your worst enemies may be reading somewhere down the road, so be careful about what you post. Here's what I mean:
A recent ruling by a Magistrate Judge with the United States District Court in the District of New Jersey has solidified the status of online social media postings as evidence in court cases and lawsuits. Specifically, content posted to social media websites is considered evidence and is subject to the same laws against evidence tampering as physical documents. In the case Gatto v. United Airlines, Frank Gatto, a former baggage handler at John F. Kennedy Airport, sued United Airlines and Allied Aviation Services for damages following a workplace-related injury which he claimed left him permanently disabled, impairing his ability to work or engage in social activities.
To refute his claims, the defendants sought legal authorization to access Gatto's Facebook account, which they believed would contain evidence showing that Gatto's ability to work and socialize had not been as severely curtailed as he claimed.
There was some initial conflict over how the information on Gatto's Facebook account would be accessed, as Gatto stated that he did not want other people logging onto his account directly, which would give them access to personal information unrelated to the case, including private email correspondence. The defendants submitted legal forms requiring Gatto's signature that would the release of information relevant to the case by a number of websites, including MySpace, eBay, PayPal, and Facebook. Gatto signed most of these, but refused to authorize the release of his Facebook information.
In December 2011, a U.S. Magistrate Judge instructed him to authorize access to the Facebook data, and Gatto agreed to change his Facebook password to one provided by the defendants. However, he claims that he did so with the understanding that the defense agreed to acquire the desired information through Facebook's corporate offices, rather than accessing his account directly – an agreement which the defendants deny making.
On December 5th of that year, a lawyer for United Airlines attempted to log into Gatto's Facebook account, prompting Facebook to send Gatto an email informing him that his account had been accessed from an unknown IP address. A subsequent email exchange between the plaintiff's and defense attorneys confirmed that the attempt had been made to log into the account, but that it would not happen again as the defendants intended to go through Facebook's corporate channels to acquire the documents they needed.
However, Facebook claimed that Stored Communications Act prevented them from releasing the data in question, and suggested instead that the defendants ask Gatto to download and print out the contents of his account. Upon attempting to do so, they discovered that Gatto had deactivated his Facebook account – in response, he claimed, to the unauthorized access by unknown parties. Gatto said that he has had experiences with his Facebook account being "hacked into and compromised" in the past. Information in deactivated Facebook accounts is automatically deleted after 14 days if the account is not reactivated within that time. Gatto did not reactivate his account, and so the data within was lost.
On June 29th, 2012, the defendants moved to have Gatto sanctioned by the court for the destruction of evidence that they believe would have shown that Gatto was indeed able to travel, socialize, and maintain an eBay business, refuting his claims about the severity of his damages.
U.S. Magistrate Judge Steven Mannion ruled that the deletion of data in Gatto's Facebook account constituted "spoliation of evidence," defined as the negligent or intentional destruction, alteration, or withholding of evidence relevant to a legal proceeding. This resulted in an adverse inference against Gatto – the inference that when a party destroys evidence relevant to a legal case, they did so because that evidence was unfavorable to them. This inference was included in the jury instruction, making it clear that the deleted data should be considered to weigh strongly against Gatto's claims. However, the Magistrate Judge did not award the defendants legal fees, as he deemed that the deletion had not been deliberately fraudulent.
The implications that this ruling has for the status of social media data reach far beyond a single case. The ruling in Gatto v. United Airlines affirmed that information posted to social media sites like Facebook can be made available to opposing attorneys in legal proceedings for civil cases, and that the owners of social media accounts do not have full disposition over those accounts when the data within them is requested to support or refute legal claims.
Spoliation of evidence is a criminal charge in some jurisdictions, and may result in fines or even prison time for those found guilty, in addition to the damage done to a case by a spoliation inference. This underscores the importance of caution when posting to social media websites during litigation, as what is said often cannot legally be retracted.
When injured and in need of counsel about these matters, contact Francis M. Smith, Esq. Mr. Smith has over 30 years of experience negotiating fair, efficient recoveries for clients who have suffered from motor vehicle accidents, slip and fall accidents, and workplace-related accidents. Call for a free consultation at (908) 233-5800, by email, or online.