Our colleagues over at Technology Law Source advise today of an interesting case in which a New Jersey federal court held that a plaintiff in a personal injury lawsuit failed to preserve relevant evidence when he deactivated his Facebook account and failed to reactivate it within fourteen (14) days – which according to Facebook’s terms and conditions renders the account’s contents irretrievable. As a result, the court found that the defendant was entitled to a jury instruction that permits the jury to infer that “the fact that a document was not produced or destroyed is ‘evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.’” In short, the court concluded that the plaintiff’s permanent deactivation of his Facebook account prejudiced the defendant’s ability to refute his claim that he had sustained permanently disabling injuries. Although this is not an employment case, it is easy to see where this issue is likely to come up in workers’ compensation, employment discrimination and other employment law contexts. Because this type of jury instruction can be devastating to a plaintiff’s case, employer’s counsel should be sure to ask for this type of instruction when plaintiffs have deactivated their relevant social media accounts. You can find the full Technology Law Source post and a copy of the court’s decision in Gatto v. United Air Lines, Inc. here.

Brian Hall