Facebook, privacy settings and spoliation

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

Facebook, privacy settings and spoliation

Once again, social media and the law collide, this time in the Western District of New York. In March, United States Magistrate Judge Marian Payson handed down a decision in Thurmond v. Bowman, 2016 WL 1295957 addressing allegations that the plaintiff should be sanctioned for spoliation after revising the privacy settings to her Facebook account.

Two interesting issues were addressed in this case, which arose from claims that the defendants violated the Fair Housing Act and other statutes when they declined to rent an apartment to the plaintiff after learning that she had two children: 1) whether spoliation sanctions were warranted for the alleged inadvertent deletion by the Plaintiff of 3 Facebook posts and 2) whether sanctions were warranted due to the plaintiff’s revision of the privacy settings of her Facebook account after being warned by the court to preserve there status quo of her Facebook account.

First, the court considered the motion for spoliation sanctions. The defense alleged that the Facebook postings at issue were relevant to the Plaintiff’s claims of emotional distress. They asserted that they had accessed the Plaintiff’s publicly viewable Facebook posts and had printed out many of them. Then a few days later—after the court had admonished the Plaintiff to preserve the status quo of her Facebook account—many of the posts were no longer publicly available and it was later learned that three of the posts consisting of photos of the Plaintiff’s children had been deleted from her account. The motion seeking spoliation sanctions then followed.

The Court first addressed the relevance of the social media postings to the plaintiff’s claims of emotional distress and wisely noted that per se relevance did not apply: “(W)ithin the specific factual context of a given case, social media postings may be relevant to particular claims or defenses, including where social media posts may contradict claims of physical or emotional injury…That said, ‘[a] plaintiff's entire social networking account is not necessarily relevant simply because he or she is seeking emotional distress damages.’…As some courts have cautioned, “the relationship of routine expressions of mood [in a social media posting] to a claim for emotional distress damages is much more tenuous [than the relationship between a post ‘reflecting engagement in a physical activity” to a claim for physical injury damages].’”

The Court then concluded that the three missing posts, which the plaintiff contended that she inadvertently deleted, were not relevant to the claims of emotional distress and thus the defendants had suffered no harm: “With respect to the three deleted posts, defendants have failed to articulate any basis upon which to conclude that they are relevant to the issue of emotional distress. I likewise can think of none. (W)ith respect to the three Facebook posts that are missing from the printed posts produced to defendants…, I find that they are not relevant to this action; in any event, defendants possess two of the postings and part of the third, as well as many other photographs depicting Thurmond's children. Thus, the deletion of the three posts from Thurmond's account cannot be said to have harmed defendants in their defense of this action and sanctions for spoliation are not warranted.”

Finally, the Court addressed the issue of whether sanctions were warranted due to the plaintiff’s blatant disregard of the Court’s preservation order. The Court declined to issue sanctions but admonished the plaintiff for her actions: “By altering her Facebook account, Thurmond violated the Court's May 21 order. Her conduct had the effect of hiding her postings from public view, and hence from defendants' counsel's view. Of course, it does not appear that the postings were deleted, and they remain available for defendants' use, and defendants have not shown that they were prejudiced by Thurmond's conduct in violating the order. Nevertheless, it is troubling that the posts were removed from public view after this Court issued a consent order designed to preserve the status quo of her social media accounts…(and) Plaintiff is admonished that any instances of future similar conduct are likely to result in sanctions.”

So let this be a lesson to you: tread carefully when it comes to advising clients regarding preserving social media account information, especially when litigation is pending. And always ensure that the social media data—all of the digital data, not just the printed version—is preserved and available for disclosure. Otherwise spoliation sanctions will undoubtedly follow, to the detriment of your client’s case.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].