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Another Facebook Case, Another Lesson Learned, cont.

On Monday, you learned the basic facts of a new Facebook/employer-related ruling out of New Jersey. How did the court rule? The New Jersey federal court held that the plaintiff’s deletion of his Facebook account during the discovery phase of litigation did constitute spoliation of evidence. The court considered the plaintiff’s action so egregious that it resulted in an “adverse inference” instruction against him at trial.

The plaintiff, Gatto, claimed that he had acted reasonably in deleting his account because he could not be certain that it was the defendants who were accessing it and that the permanent deletion of the information was not within his (but, rather Facebook’s) control. The court disagreed and noted, “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…”

The court’s ruling affirms that plaintiffs who fail to preserve relevant social media through the course of discovery may face harsh sanctions. Furthermore, it confirms that social media is accessible by employers. However, a word of caution: employers should never request an employee’s password information to his or her social media account in the regular course of employment. (See previous blog articles on the topic here and here.) The effect of this ruling only extends to situations in which there is pending employer versus employee litigation. If employers find themselves in the same situation as the Gatto defendants, a request should be made through counsel for the subject employee’s social media accounts (Facebook, Twitter, LinkedIn, etc.) immediately. These online outlets may be a source of valuable information that can be used to rebut claims.

If you are an employer and find yourself faced with a pending lawsuit or have a question regarding a personnel matter, contact the employment and labor law attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC. We are here to help.

Jaron Blandford is a member of McBrayer, McGinnis, Leslie & Kirkland, PLLC and is located in the firm’s Lexington office. Mr. Blandford focuses his practice on civil litigation with an emphasis in all areas of labor and employment law. He can be reached at jblandford@mmlk.com or (859) 231-8780.

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