In Brown v. SSA Atlantic, LLC, No. CV419-303 (S.D. Ga. March 15, 2021), Georgia Magistrate Judge Christopher L. Ray granted in part and denied in part the defendant’s motion for spoliation sanctions against the plaintiff for his deactivated Facebook account and failing to disclose others, ordering the plaintiff to produce data from his Facebook account(s) and also directing the plaintiff and his attorney to show cause why sanctions should not be imposed, pursuant to Federal Rule of Civil Procedure’s 26(g) certification requirements.
In this personal injury case involving a vehicle collision, during discovery, in both his deposition and written discovery responses, the plaintiff disclosed one deactivated Facebook account. In his written response, the plaintiff claimed he had deactivated the account before the collision occurred, but in his deposition, he conceded it was deactivated after the collision. The defendant also discovered the plaintiff had at least two other Facebook accounts, and possibly four, that were undisclosed and the plaintiff conceded that he had no fewer than three “burner” accounts. As a result, the defendant requested that the plaintiff’s complaint be stricken as a sanction for the alleged spoliation, or, alternatively the jury should be instructed to draw an adverse inference. Failing either of those sanctions, the defendant requested that plaintiff be ordered to produce the requested account information.
Judge Ray, noting the tone of the parties’ respective briefs “is, to say the least, testy”, also stated “as this Court has previously been compelled to explain, ‘litigation is not an exercise in catching one’s opponent in some technical misstep to secure advantage. It is a search for truth and justice. The procedural rules should facilitate that search, not impede it.’…Then, as now, ‘[t]his Court will not abide any party or counsel’s attempt to reduce its procedures to a game of ‘Gotcha!’”
While also noting that “Plaintiff’s response appears to be little more than an attempt to hide a substantive mountain behind a procedural molehill. If that was his intent, it has failed”, Judge Ray also stated: “The Court does, however, agree that SSA’s presentation of this issue as a motion for spoliation sanctions, pursuant to the Court’s inherent power, is perhaps not the most natural. In the first place, despite the defendant’s characterization, it is not clear that any evidence has been spoliated, as opposed to withheld. Defendant’s brief explains the distinction between ‘deactivating’ and ‘deleting’ a Facebook account…As the Court in Bruner v. City of Phoenix explains, ‘deactivation’ primarily prevents third-party access to the Facebook account, and ‘reactivation’ remains possible…’Deletion,’ in contrast, ‘is a much more permanent step, and it means that the account information will be erased from the site completely.’…SSA does not dispute that, based on the information currently available, Brown has only ‘deactivated’ and not ‘deleted’ his Facebook account(s).”
Additionally, Judge Ray stated: “Although the Court disagrees with SSA’s procedural choice, the substance of its motion is spot on. Brown’s alleged conduct related to the social media discovery, which he never really disputes, is troubling. The defense of his objection to the written request is dubious, at best…The concluding contention that ‘there are appropriate procedures’ SSA could have used to gain access to the deactivated Facebook account…is particularly brazen, given that the original discovery request seems like exactly the ‘appropriate procedure,’ which Brown’s inadequate response obstructed…Despite his response effectively conceding that his original discovery response was defective, plaintiff still does not propose to make good his failure…In the absence of any indication that he—or perhaps more accurately his attorneys—took any of those good-faith steps, the brief’s indignation rings particularly hollow.”
As a result, Judge Ray ordered the plaintiff to produce data from his Facebook account(s). He then took up the issue of potential Rule 26(g) violations, stating: “Although the Court cannot find that spoliation sanctions are appropriate, plaintiff’s own argument exposes a deeper problem that the Court cannot ignore. The Federal Rules of Civil Procedure impose a duty on attorneys to sign discovery responses, certifying them…Certification implicitly imposes a duty upon the signing attorney to make ‘a reasonable inquiry into the factual basis of his response, request, or objection.’…Where such a reasonable inquiry is not conducted, Rule 26(g) requires appropriate sanctions be assessed against ‘the signer, the party on whose behalf the signer was acting, or both.’”
Noting that “the Court must inquire why [the burner Facebook accounts] were not revealed by plaintiff’s counsel’s required inquiry and identified notwithstanding the objection”, Judge Ray also directed the plaintiff and his attorney to show cause why sanctions should not be imposed, pursuant to Rule 26(g)’s certification requirements.
So, what do you think? Do you think a deactivated Facebook account warrants spoliation sanctions or do you think the Court made the right call? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.