Social media as court evidence - in divorces, employment disputes, and intellectual property battles - is not a particularly new concept. However, a recent ruling makes it clear that social media evidence is exactly like all other evidence in a lawsuit, and you have a legal duty to preserve it.
Attorney Scott Atkinson at Carr McClellan explains:
"A federal magistrate judge in New Jersey recently sanctioned a plaintiff for evidence spoliation after he deactivated his Facebook account during litigation, resulting in its permanent deletion by Facebook after 14 days passed. The court's order confirms that social networking accounts are just like any other form of evidence and are subject to the same preservation obligations. Parties who fail to preserve evidence contained in their social networking accounts when litigation is pending or anticipated do so at their peril."
Frank Gatto, a grounds operation supervisor at JFK International Airport, was injured on the job. He sued United Airlines and Allied Aviation Services, claiming they were responsible for the accident which left him permanently disabled and unable to work.
As part of the dispute, Gatto was required to give Allied and United access to his social networking accounts. But when the companies accessed his Facebook account, Gatto deactivated it, which led to the deletion of his account two weeks later.
Gatto claimed he deactivated his account because he thought it had been hacked, and that he never intended to destroy the contents. No matter: the judge overseeing the dispute sanctioned Gatto for failing to preserve evidence, telling the jury that they were free to infer that the content of his Facebook page would have harmed his case against United and Allied.
Key takeaways for employers? There are three. First, explains Michael Schmidt at law firm Cozen O'Connor, you need to act quickly to protect potential social media evidence:
"When your litigation is deemed appropriate for discovery on social media, make sure requests are served on the employee's counsel as soon as possible. It is certainly at that point, if not sooner, that the employee will have a duty to preserve potentially-relevant information that can be obtained through social media, and ensure that it does not get destroyed even unintentionally."
Second, the rules also apply to you. From attorney Emily Huters at Morrison & Foerster:
"If you are involved in litigation where social media evidence within your control may be relevant, don't delete the data or deactivate the account, which could lead to deletion. This is not the first time a party has been sanctioned for spoliation of social media-related evidence, and it won't be the last."
Finally, it's time to adopt a new policy. Again, Michael Schmidt:
"It is not [...] just about whether relevant social media information can be discovered by one party in a lawsuit. It is also about what happens when a party fails to preserve potentially-relevant social media information in the first place, and that information subsequently gets destroyed and becomes non-discoverable."