Social media is playing an increasingly prominent role in litigation. Personal posts and comments online can impact the outcome of a court case, something very important for social media users to understand. The destruction or deactivation of a Facebook or other social media account can undermine your case. “Spoliation” occurs where evidence is destroyed or significantly altered, or when a party fails to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”1 This duty to preserve has been extended to electronically stored information, including email and other electronic documents and data.2
Under the traditional law of spoliation of evidence, “[w]hen a party alters, loses or destroys key evidence before it can be examined, the court can dismiss the pleadings of the party responsible for the spoliation.”3 On a motion for spoliation sanctions involving the destruction of electronic evidence, the party seeking sanctions must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a “culpable state of mind”; and, (3) the destroyed evidence was “relevant” to the moving party’s claim or defense.4
Establishing that the electronic data was destroyed with a “culpable state of mind” does not require proof that the destruction was imminent or even reckless. “Spoliation sanctions … are not limited to cases where the evidence was destroyed willfully or in bad faith, since a party’s negligent loss of evidence can be just as fatal to the other party’s ability to present a defense.”5 Thus, “[a] culpable state of mind” includes ordinary negligence.6
In addition, the party deprived of evidence as a result of its adversary’s spoliation does not need to prove the relevance of the destroyed evidence in most cases.7
As the use of social media continues to become more prevalent in society, so too will the role of social media in litigation. A recent example of this is the case entitled Gatto v United Air Lines, et al., Civil Action No. 10-cv-1090 [2013], in which the United States District Court for the District of New Jersey granted a litigant’s motion for sanctions based upon spoliation of evidence. In that case, the plaintiff alleged various physical limitations and loss of quality and enjoyment of life. The defendants contended there was evidence to the contrary contained on the plaintiff’s Facebook page. The plaintiff deactivated his Facebook account before it could be reviewed by the defendants. The court determined that the sanction of an adverse inference charge was warranted based upon the plaintiff’s failure to preserve his Facebook account.
In light of the rapidly changing role of social media in litigation, it is important to have an attorney who understands the interplay between this ever-evolving technology and this emerging area of the law. The attorneys at Maynard O’Connor are abreast of the interplay between technology and litigation, and are leading the way in developing this new area of the law. We can assist you to make sure that no evidence is lost, and that your case is not compromised due to the inadvertent destruction of evidence.
References
1. Voom VD Holdings LLC v EchoStar Satellite L.L.C., 69 AD3d 912, 2010 N.Y. Slip Op. 00658 [1st Dept.2012], quoting Zubulake v UBS Warburg LLC, 220 FRD 212, 218 [SDNY2003]
2. see e.g. McCarthy v. Phillips Elec. N.A., Index No. 112522/03, at 3 [Sup Ct, N.Y. County June 9, 2005]
3. Squitieri v City of New York, 248 A.D.2d 201, 202 [1st Dept.1998]
4. Ahroner v Israel Discount Bank of New York, 79 AD3d 481, 482 [1st Dept.2010]
5. Standard Fire Ins. Co. v Fed. Pac. Elec. Co., 14 AD3d 213, 218 [1st Dept.2004]
6. Ahroner, 79 AD3d at 482; see e.g. Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin Air Conditioning Corp., 221 A.D.2d 243, 243 [1st Dept.1995][dismissing plaintiff’s claims due to its “negligent loss of a key piece of evidence which defendants never had the opportunity to examine”]
7. Ahroner, 79 AD3d at 482, citing Sage Realty Corp. v Proskauer Rose, 275 A.D.2d 11 [1st Dept.2000], lv dismissed 96 N.Y.2d 937 [2001]
