A New Jersey District Court has sanctioned a personal injury plaintiff for spoliation following the plaintiff’s deletion of his Facebook account which defendants were trying to access.  

The defendant’s discovery requests asked 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.” Later, the defendant sent forms for plaintiff to execute which would authorize Facebook and other sites to release plaintiff’s information. The plaintiff executed all the authorizations except the one for Facebook.

Plaintiff’s failure to execute the Facebook authorization was raised before the Court and the Court ordered plaintiff to execute the authorization.  Plaintiff agreed to enable access by changing his password to a certain word. Thereafter, defense counsel accessed the account to confirm the password change and printed some of the accounts content.  

The following day, Facebook notified plaintiff of the account access from an unknown IP address in New Jersey. Plaintiff notified his counsel who contacted defense counsel to confirm that the records would be sought from Facebook headquarters. Defense  counsel responded, explaining the account was accessed to confirm the password change but would not be accessed again as the authorization was sent to Facebook.

Facebook responded to the authorization advising that the Stored Communications Act barred it from disclosing the data but suggested having plaintiff download the content himself.    Counsel for the parties agreed that plaintiff would do so and turn over a copy, along with a certification that he had made no changes since he was first ordered to execute the authorization. However, plaintiff’s counsel later advised defendants that plaintiff had deactivated the account and could not reactivate it. The plaintiff claimed he deactivated the account because of the notification he received that unknown people were accessing his account without his permission.

The defendants moved for sanctions claiming that the deletion was intentional as postings contained in the deleted account would have helped refute plaintiff’s damages claim. Defendants based this assertion on content printed from the account prior to deactivation.  The Court rejected plaintiff’s argument that the information contained in the account was not intentionally suppressed and found that even if plaintiff did not intend to deprive defendants of the data, he intentionally deleted the account and thereby failed to preserve relevant evidence.

This case, as well as the case discussed here, provide valuable authority for accessing social media content in litigation. 

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.