In its March 25, 2013 opinion, Gatto v. United Air Lines, Inc., the US District Court for the District of New Jersey granted the defendants' request for spoliation sanctions, finding that the plaintiff's deletion of his Facebook page was a failure to preserve evidence. In this personal injury action, the plaintiff alleged that he became permanently disabled, which limited his ability to perform physical and social activities. The defendants sought discovery of the plaintiff's social media activity, including his Facebook page. After initially objecting to this request, the plaintiff gave the defense the password to his Facebook account after the magistrate judge ordered the plaintiff to execute a release of documents and information from Facebook. Less than a week later, defense counsel accessed the plaintiff's Facebook account with the provided password to authenticate its validity.

After defense counsel accessed the plaintiff's Facebook account, the plaintiff stated that he received a message from Facebook informing him that his account had been accessed by an unauthorized IP address in New Jersey. The plaintiff later contacted his attorney to see if defense counsel accessed the page. Defense counsel confirmed to the plaintiff's attorney that the page was accessed, but before the plaintiff was informed that defense counsel accessed his page, the plaintiff permanently deleted his Facebook page. The plaintiff unsuccessfully attempted to reactivate his account. The defendants contended that the plaintiff's Facebook page contained material that would contradict plaintiff's personal injury claims and moved for spoliation sanctions, including an adverse jury instruction and costs.

In its ruling on the defendants' motion, the court found that the defendants were prejudiced by the plaintiff's deletion of his Facebook account because they lost access to evidence potentially relevant to plaintiff's damages and credibility. In granting the defendants' request for an adverse inference, the court found that the deletion of the plaintiff's Facebook account satisfied the four factors courts consider when giving an adverse inference instruction to the jury:

(Mosaid Tech. v. Samsung Elec.)

This ruling shows the growing influence of social media on litigation and the attention practitioners must pay to their clients' use of social media. If a party's social media accounts are expected to be involved in litigation, practitioners should take careful steps to inform their clients of their duty to preserve, and sanctions that they may face if they alter, social media evidence.