A personal-injury plaintiff who deleted his Facebook account while the defendants were trying to access it has been sanctioned for spoliation.
The plaintiff "had a duty to preserve his Facebook account at the time it was deactivated and deleted" and the defense would be prejudiced by loss of the evidence, U.S. Magistrate Judge Steven Mannion ruled Monday in Gatto v. United Airlines, 10-cv-1090.
But Mannion, who sits in Newark, declined a request for legal fees, finding the adverse-inference jury instruction he ordered was a sufficient penalty.
Frank Gatto of Brooklyn, N.Y., a baggage handler at John F. Kennedy Airport, claims he suffered serious injuries when a set of stairs used for aircraft refueling crashed into him on Jan. 21, 2008. He returned to work for a while but left that July. He claims he is permanently disabled, unable to work and limited in physical and social activities.
Gatto sued Allied Aviation Services, which owned the stairs, and United Airlines, whose plane allegedly caused the accident. The suit, filed in Middlesex County Superior Court, was removed to federal court.
The defendants first sought social media discovery in July 2011, asking for documents or records of "wall posts, comments, status updates or personal information posted or made by Plaintiff on Facebook and/or any social media website from 2008 through the present."
They also requested the same type of information about the accident and any eBay business operated by Gatto during that time frame.
United later sent forms for Gatto’s signature that would authorize Facebook, MySpace, eBay and PayPal to release his information. On Nov. 21, 2011, Gatto sent them back signed, for all but Facebook.
During a conference on Dec. 1, U.S. Magistrate Judge Cathy Waldor ordered Gatto to execute the Facebook authorization, and he agreed to enable access by changing his password to "alliedunited."
The parties disagree on how the defense was supposed to access the Facebook data.
In opposing sanctions, Gatto and his lawyer, J. Silvio Mascolo, certified to their understanding that defense counsel would not access the account online but would obtain the information from Facebook’s corporate offices.
Mascolo claims the defense lawyers assured him that there would be no online access and Gatto asserted that if he had known there would be, he would have objected because it would enable the lawyers to look at unrelated private information, especially his email.
Gatto stated his account had been "hacked into and compromised on numerous occasions" in the past, including during his "contentious divorce."
The defendants, on the other hand, denied providing such assurances.
On Dec. 5, 2011, United lawyer Laurie Kachonick of Connell Foley in Roseland, emailed Mascolo, pointing out that Gatto had not changed the password and asking that it be done that day.
Kachonick admittedly went online to check on the password change and printed out some materials.
On Dec. 6, Facebook notified Gatto that his account had been accessed by an unknown IP address in New Jersey.
He told Mascolo, who emailed Kachonick, asking for confirmation that the records would be sought from Facebook headquarters.
Kachonick did not reply until Dec. 15. She apologized for the delay, saying she was on vacation, and explained the "account was accessed to confirm the password was changed, but will not be accessed again as we have sent the authorization to Facebook."
In response, Facebook said the Stored Communications Act barred it from disclosing the data but suggested having Gatto download the account contents.
During a telephone conference with Waldor on Jan. 6, 2012, it was agreed that Gatto would do so and turn over a copy, along with a certification that he had made no changes since the Dec. 1 conference.
Two weeks later, Mascolo emailed Kachonick that Gatto had deactivated the account and while he had instructed him to try to reactivate it, "I am told that once an account is deleted/deactivated, it cannot be reactivated."
It proved impossible, as he advised Kachonick on Feb. 1.
Gatto claimed he deactivated the account on Dec. 16 because "unknown people were apparently accessing my account without my permission," and Facebook automatically deleted the data 14 days later.
He claims he did not learn it was Kachonick until afterward.
The defendants moved for sanctions on June 29, contending the deletion was intentional. The lost postings would have helped refute Gatto’s damage claims based on the materials printed out, which showed trips taken by Gatto, social activities and an eBay business, they claimed.
Mannion rejected the argument that the deletion was accidental.
Even if Gatto did not intend to permanently deprive the defendants of the data, he intentionally deactivated the account and failed to reactivate it within the necessary time, causing permanent loss of evidence potentially relevant to his damages and credibility, Mannion said.
He declined to award legal fees because Gatto’s "destruction of evidence does not appear to be motivated by fraudulent purposes or diversionary tactics, and the loss of evidence will not cause unnecessary delay."
Mascolo, of Rebenack Aronow & Mascolo in New Brunswick, did not return a call.
Neither did defense lawyers Stacie Powers of Connell Foley in Roseland, for United, and Kenneth Gormley of Locke Lord Bissell & Liddell in New York, for Allied.