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.