Fighting Social Media Spoliation of Evidence

Walter Olson’s recent tweet about social media spoliation got us thinking about a familiar 2006 case on that topic.

These days, you can assume that a Plaintiff maintains some type of social media presence.  We have previously discussed the manner in which this type of evidence can be developed and explored.  However, because Plaintiffs’ attorneys have become somewhat more savvy on these issues, you may wish to warn them outright not to destroy any such evidence.

Which brings us to Torres v. Lexington Ins. Co., 237 F.R.D. 533 (D. Puerto Rico 2006). As a 2006 case, it’s ancient in social media time. But it’s so directly on point that we still typically enclose a copy of it when we send an opposing party a social media preservation letter.

In that case, Judge Gelpi spells out precisely the point that Plaintiffs should not, and must not, delete or otherwise destroy relevant social media evidence.  The Plaintiff, a spa customer, claimed she was assaulted, and as a result, developed “intense mental anguish, feelings of shame, humiliation, depression, unworthiness, weeping and has been forced to undergo psychological treatment and therapy.” She also claimed that her job and marriage had suffered as a result of the alleged incident (which is not detailed in the court’s order).

At some point, defense counsel found the Plaintiff’s websites and notified her attorneys.  Not long thereafter, the websites vanished from the Internet, prompting the defendant to file a motion to dismiss for fraud on the court.  The district court noted:

At some point during the case, defendants learned outside of discovery that [Plaintiff] possessed several web pages depicting an active social life, and an aspiring singing and modeling career. These web pages were in direct contradiction to [Plaintiff’s] assertions of continued and ongoing mental anguish. At the time the web pages were discovered, neither plaintiffs nor plaintiffs’ counsel had knowledge that defendants had discovered the pages. Defendants were able to download and print out much of the content of the web pages and subsequently informed plaintiffs’ counsel that eliminating or altering the websites could be considered spoliation or evidence tampering. Two days after plaintiffs were alerted about defendants’ knowledge of the websites, the same were deleted in their entirety. No plausible explanation has been offered for this. Defendants now move for sanctions, to wit, that [Plaintiff’s] case be dismissed or in the alternative that her damages be eliminated or reduced.

Although the court did not dismiss the case outright, it did sanction the Plaintiff, “eliminat[ing] all possibility of introducing evidence of continuous or ongoing mental anguish on her part.”  In so doing, the court stated as follows:

In this case, [Plaintiff] did not make it known to defendants that she had an aspiring modeling or singing career. In fact, she attempted to depict the life of a recluse with no or little social interaction. Instead, [Plaintiff] led an active social life and announced this information to the world by posting it on very public internet sites. Then, immediately upon defendants’ discovery of evidence, which could be used to contradict or impeach her allegations, [Plaintiff] removed the information from the internet. This is the type of unconscionable scheme the court seeks to deter.

It doesn’t get any more clear cut than that.

Accordingly, when we become aware that a Plaintiff has a potential presence on the internet, we will serve a preservation letter on the Plaintiffs’ attorney and enclose a copy of this case.  As a practical point, it is best to capture and preserve as much of the publicly available version of the Internet site as possible, so that one can compare what may have once existed with what is later deleted.