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Facing the Evidence: Spoliation and Social Media

Litigants, be wary! The casual and innocent acts of cleaning your home, disposing of old documents, or even deactivating your Facebook account may be the subject of a lawsuit against you.

This is what occurred in Gatto v. United Air Lines, Inc. 10-cv-1090-ES-SCM, in which the plaintiff in a personal injury action deleted his Facebook page, which allegedly contained photos and comments concerning, to plaintiff’s detriment, his claims of serious personal injuries. The Court held that plaintiff’s Facebook page was relevant to the litigation, and plaintiff’s deactivation of the account amounted to a spoliation of evidence as the photos and comments concerning plaintiff’s claims were subsequently destroyed by Facebook. Accordingly, the Court ordered that an instruction be given to the jury that it may draw an adverse inference against the plaintiff for failing to preserve the Facebook account.

Evidence in any litigation is vital to establishing or rebutting any claim. Thus, one party’s attempts at concealing or destroying evidence relevant to any claim are considered to be, in some circumstances, a separate tort unto itself known as “fraudulent concealment.” A claim for fraudulent concealment accrues when there is either the destruction or significant alteration of evidence, or the failure of a party to preserve property for another’s use as evidence in either pending or reasonably foreseeable litigation. Litigation, therefore, need not have commenced for a claim of spoliation to accrue – only that it is reasonably foreseeable to occur. In the event one party is found to have spoiled evidence, a court may consider a number of remedies for such illicit behavior such as: dismissing the party’s claim, granting judgment in favor of the aggrieved party, suppressing evidence, allowing for the jury to draw an adverse inference from the destruction, and imposing fines and attorneys’ fees.

Spoliation of evidence is a critical issue in environmental and toxic torts matters. Injured plaintiffs and potentially liable defendants are in a persistent battle over the preservation of evidence, and the undertaking of repairs and remediation. For instance, in Robertet Flavors, Inc. v. Tri-Form Const., Inc., 203 N.J. 252 (2010), the New Jersey Supreme Court held that certain claims regarding faulty, leaking windows could not proceed as the plaintiff remediated the windows prior to allowing the defendant the opportunity to conduct its own inspection. Parties should therefore be mindful when taking any steps which may change any evidence in an actual or potential litigation. Even if it is the simple act of deactivating your Facebook account to avoid suspicions of piracy or repairing leaking windows to avoid mold contamination, such actions may be considered fraudulent concealment and subject to a court’s reprimand.

Should you be faced with a situation in which you question whether or not you may be destroying or altering evidence in a potential litigation, please contact Lieberman & Blecher at 732-355-1311 to discuss the legal ramifications of your actions.


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