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Altering or deleting a Facebook account during litigation may be considered spoliation of evidence

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March 29, 2013 at 6:39 pm


Law Lessons from FRANK GATTO v. UNITED AIR LINES, INC., et al., USDC-NJ, 10-cv-1090-ES-SCM, March 25, 2013:

Spoliation occurs where evidence is destroyed or significantly altered, or where a party fails to “preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Mosaid Technologies v. Samsung Electronics, 348 F.Supp.2d 332, 335 (D.N.J. 2004) (internal citations omitted). Litigants in federal court have a duty to preserve relevant evidence that they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation, and the Court may impose sanctions on an offending party that has breached this duty. See Scott v. IBM, Corp., 196 F.R.D. 223, 248 (D.N.J. 2000). “Potential sanctions for spoliation include: dismissal of a claim or granting judgment in favor of a prejudiced party; suppression of evidence; an adverse inference, referred to as the spoliation inference; fines; and attorneys’ fees and costs.” Mosaid, 348 F.Supp.2d at 335.

In determining which sanction is appropriate courts consider the following:

(1) The degree of fault of the party who altered or destroyed the evidence;
(2) The degree of prejudice suffered by the opposing party; and
(3) Whether there is a lesser sanction that will avoid substantial unfairness to the opposing party, and where the offending party is seriously at fault, will serve to deter such conduct by others in the future.

Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994).

An adverse inference, or “spoliation instruction,” permits a 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.” Scott, 196 F.R.D. at 248. The adverse inference instruction is predicated “upon the common sense observation that when a party destroys evidence that is relevant to a claim or defense in a case, the party did so out of the well-founded fear that the contents would harm him.” Mosaid, 349 F.Supp.2d at 336. Before giving an adverse inference instruction, the Court must find that four factors are satisfied: (1) the evidence was within the party’s control; (2) there was an actual suppression or withholding of evidence; (3) the evidence was destroyed or withheld was relevant to the claims or defenses; and (4) it was reasonably foreseeable that the evidence would be discoverable. Id.; Brewer v. Quaker State Oil Refining Co., 72 F.3d 326, 334 (3d Cir. 1995); Veloso v. Western Bedding Supply Co., 281 F.Supp.2d 743, 746 (D.N.J. 2003); Scott v. IBM Corp., 196 F.R.D. 223, 248 (D.N.J. 2000).

Monetary sanctions are used to compensate a party for “the time and effort it was forced to expend in an effort to obtain discovery” to which it was entitled. Mosaid, 348 F.Supp.2d at 339. There is no rule of law mandating a particular sanction upon a finding of improper destruction or loss of evidence; rather, such a decision is left to the discretion of the court.” Kounelis v. Sherrer, 529 F.Supp.2d 503, 520-21 (D.N.J. 2008) (quoting Hawa Abdi Jama v. Esmor Corr. Servs., 2007 U.S. Dist. LEXIS 45706, at *126 (D.N.J. 2007)).

In this case, Defendants’ request that an instruction be given at trial to the jury that it may draw an adverse inference against Plaintiff for failing to preserve his Facebook account and intentional destruction of evidence is GRANTED.



NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email.


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NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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