## Facts

- Frank Gatto sued United Air Lines, Inc. and others in federal court seeking damages for injuries he claimed he suffered in an airport accident.
- Gatto alleged serious, lasting limitations affecting his ability to work and participate in social and physical activities.
- United believed Gatto’s Facebook content could show post-accident activities inconsistent with his claimed injuries and damages.
- During discovery, the court ordered Gatto to provide United with access to his Facebook account; Gatto complied by providing credentials that allowed defense counsel to access the account.
- Defense counsel accessed the account and captured or printed some materials, but did not complete a full review of the account’s contents.
- A few days after providing access, Gatto deactivated his Facebook account.
- Facebook then deleted the account’s contents before United could locate and preserve all potentially relevant posts, photos, and other information.
- The record did not clearly establish why Gatto deactivated the account, or whether Facebook’s deletion occurred solely under its retention practices for deactivated accounts or through additional actions connected to the deactivation.
- United moved for spoliation sanctions, requesting an adverse-inference jury instruction based on the loss of the Facebook evidence.

## Issues

1. Whether deactivation of a litigant’s Facebook account during discovery—leading to deletion of its contents—constitutes spoliation of discoverable electronically stored information.
2. If spoliation occurred, whether an adverse-inference jury instruction was an appropriate sanction.

## Decision

- The court found that the Facebook materials were relevant to claims and defenses about the extent of Gatto’s injuries and damages, and were discoverable.
- The court determined that Gatto had a duty to preserve the Facebook account’s contents once litigation was pending and the account had been placed at issue in discovery.
- The court concluded that deactivation of the account, which resulted in the loss of the contents, constituted spoliation.
- The court granted sanctions in the form of an adverse-inference instruction permitting the jury to infer that the deleted Facebook content would have been unfavorable to Gatto.
- The court did not impose terminating sanctions such as dismissal.

## Legal Principles

- Spoliation is the destruction, alteration, or failure to preserve evidence for another’s use in pending or reasonably foreseeable litigation.
- A duty to preserve arises when litigation is pending or reasonably anticipated and extends to electronically stored information, including social-media content.
- Courts commonly evaluate spoliation by considering whether: (1) the evidence was within the party’s control, (2) it was destroyed or not preserved, (3) it was relevant to claims or defenses, and (4) there was a duty to preserve it at the time of loss.
- Sanctions are aimed at addressing prejudice and deterring improper conduct; the sanction selected should match the circumstances and the harm caused by the loss of evidence.
- An adverse-inference instruction may be warranted when a party’s conduct leading to the loss of evidence is sufficiently blameworthy and the missing evidence was likely relevant, such that the loss impaired the opposing party’s ability to present its case.

## Conclusion

Gatto held that once Facebook content became a clear discovery target and subject to a court-ordered access arrangement, deactivating the account in a way that resulted in deletion of its contents amounted to spoliation. Because the deletion deprived United of the chance to review and use potentially important impeachment and damages-related material, the court ordered an adverse-inference jury instruction, while declining to impose the most severe sanctions.


Gatto v. United Air Lines, 2013 WL 1285285 (2013)