The court agreed that an instruction be given at trial to the jury that it may draw an adverse inference against Frank for failing to preserve his Facebook account and intentional destruction of evidence.
Frank was sanctioned for evidence spoliation after he deactivated his Facebook account during litigation, resulting in its permanent deletion by Facebook after 14 days passed. It is clear that social media accounts, being in electronic form, are also required to follow the evidence preservation requirements of U.S. laws. Parties who fail to preserve evidence contained in their social media accounts when litigation is pending or anticipated do so at their peril.
This is the golden rule of e-discovery procedure where potential evidence is put on hold by the attorneys and such evidence cannot be alter or destroyed. In fact, putting on hold is the main step to sort out relevant evidence and then preventing its deletion. If the entire electronic information, whether related to a case or not, is seized or acquired that would not serve any purpose.
Recently, the New Zealand High Court told investigation authorities to return back illegally obtained Megaupload digital material. This is so because e-discovery procedure cannot be extended to even personal and private information that has nothing to do with the case in hand.
During a recent money laundering accusation in India, the HDFC ban launched its own investigation. The Reserve Bank of India (RBI) audit report found many aberrations in the dealings of ICICI, HDFC and Axis banks. RBI also announced that it would take action against the defaulting banks.
However, none has realised that the internal and private investigation by these banks can destroy the crucial digital evidence. Neither the investigation authorities nor the RBI put on hold the relevant digital evidence and till now everything must have gone.
India does not follow the cyber forensics and e-discovery best practices. Even cyber security best practices in India are also missing. E-discovery for social media, cloud computing, etc is going to increase in the near future in India and we must be well prepared for the same.
In Frank Gatto’s case, for months, the defendants had sought information about the plaintiff’s (Frank) social networking activities because they might shed light on the effects of the personal injuries claimed by the plaintiff. The plaintiff created a new Facebook password and provided it to defense counsel to permit access to the account. After learning that a third party had accessed his Facebook account, the plaintiff deactivated the account. Facebook automatically deleted the account 14 days later.
The plaintiff contended that he terminated the account because he was involved in contentious divorce proceedings and his account had been repeatedly “hacked into” before his personal injury lawsuit.
However, the court did not agree with the plaintiff. The court held that the Facebook account was clearly within plaintiff’s control, that it was relevant to the claims or defenses at issue, and that it was reasonably foreseeable that the evidence would be discoverable—particularly since the Facebook account had been requested in discovery five months before.