Failure to Preserve Facebook for Litigation is Sanctionable. ‘Nuff Said.

Failure to Preserve Facebook for Litigation is Sanctionable. ‘Nuff Said.

Failure to Preserve Facebook for Litigation is Sanctionable. ‘Nuff Said. 150 150 Jason Krause

We’ve been saying this for years, but not everyone was ready to listen — social media is now an essential part of litigation.

In case you still have some doubts, the courts have now made it abundantly clear that a failure to preserve Facebook and other social media content is a sanctionable offense. It will kill your case and destroy your client’s chance for justice.

Recently, we commented on an employment dispute, EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., in which the court hammered a federal agency for failure to produce social media in a timely manner. Now, in a Gatto v. United Air Lines, Inc., (D.N.J. Mar. 25, 2013) the court has sanctioned a plaintiff for deactivating and deleting his Facebook account despite a clear duty to preserve Facebook.

As part of a personal injury suit, the plaintiff turned over passwords and login information to his Facebook account to opposing counsel. However, after opposing counsel logged into the account they found that the plaintiff had deactivated the account.

He tried to claim that he had been involved in a contentious divorce and was afraid that someone who didn’t like him was hacking into his account.

After 14 days, Facebook obliterated all data from a deactivated account, as is their policy.
However, the court was not buying the angry ex-wife excuse, and issued an adverse inference against Plaintiff for failing to preserve Facebook account and intentional destruction of evidence.

Preserving Facebook’s Not That Hard

Sanctions like this are going to be increasingly common until parties understand that social media eDiscovery needs to be handled with the same level of care as with email or other computer files. Why do parties bring in forensic examiners to review computer hard drives, but when it comes to social media, a Facebook account is left in the control of the plaintiff?

If Facebook data is part of your case, why not keep a complete record of that content that is accurate, searchable, and can be easily reviewed and produced? Nextpoint keeps a forensically sound archive and saves native formats and metadata, preparing you for any regulatory, litigation, or compliance demand. We capture everything, including linked content.

The courts have now spoken. Don’t try to lie about it. And don’t try to destroy social media evidence before going to court. Oh, and don’t try to blame your ex-wife if you delete social media. And of course, find a way to archive social media for eDiscovery that doesn’t leave it in in a place where it can be tampered with or otherwise destroyed.

Download our free best practice guide: 10 STEPS TO SOCIAL MEDIA DISCOVERY READINESS