Federal court considered whether altering privacy settings of social media account entails spoliation

In a discrimination case (plaintiff had attempted to rent an apartment and she was allegedly refused because of her two young children), several of Plaintiff’s social media posts (Facebook, Instagram and Twitter) were relevant because, in Defendant’s view, they provided evidence of Plaintiff’s “emotional state and living circumstances after the alleged discrimination”.

After some of those posts disappeared, Defendants moved for sanctions against Plaintiff for deleting them.

Plaintiff argued that the posts were not deleted: she just reviewed the privacy settings, adjusting the latter  so that only “friends” were allowed to view her profile.

At an evidentiary hearing, Plaintiff produced a printed set of all of her posts, except three posts.

The Court concluded that

  1. Defendant complied with her duty to preserve. “The three posts that defendants have proved were deleted from her Facebook page were deleted inadvertently and were not relevant to this litigation”;
  2. there was no finding of bad faith considering that Defendant produced hundreds of her posts. “The three identified posts that were deleted contain photographs of children that are similar to many posts preserved on Thurmond’s page that have been produced to defendants”;
  3. the moving party could not prove that the destroyed evidence was relevant to its claims or defenses.

In addition, the Court noted that – rather than relying on publicly available posts – Defendants could have requested the information through discovery.

However, by altering her account privacy settings, Plaintiff violated a court order designed to preserve the “status quo” of her social media. Court warned Plaintiff that further similar conducts could result in sanctions.

Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016) is available at http://www.theemployerhandbook….            Open PDF


For more information, Francesca Giannoni-Crystal

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