In Torgersen v. Siemens Bldg. Tech. et al., No. 19-cv-4975 (N.D. Ill. May 24, 2021), Illinois Magistrate Judge Susan E. Cox granted the defendants’ motion to compel and for sanctions for the plaintiff’s intentional deleting his Facebook account after he had a known duty to preserve ESI from that account but ruled that jury instructions (including an adverse inference instruction), rather than case dismissal was the appropriate sanction.

Case Background

In this case involving an alleged construction site fall accident, for which the plaintiff sought damages for personal injury and past and future lost earnings and wages, the plaintiff had a publicly viewable Facebook page.  Upon discovering the page, on July 13, 2020, Third-Party Defendant LLD served written discovery on Plaintiff asking about social media accounts including, specifically, the Facebook account.  On or about August 31, 2020, Plaintiff proceeded with deleting his Facebook account, after his counsel told him not to delete his Facebook page, which the plaintiff claimed he did not remember at the time he deleted his account.  Because Facebook’s policies state that a deleted Facebook page is permanently deleted after only 30 days and that they contended that the Stored Communications Act, 18 U.S.C. 2701 exempts Facebook from a civil subpoena, the information contained on the plaintiff’s Facebook page was determined to be unrecoverable for purposes of this litigation.

Judge’s Ruling

Rejecting the plaintiff’s argument that disclosure of the once publicly viewable Facebook page “[u]nnecessarily invades Plaintiff’s privacy”, Judge Cox proceeded with the five-point test for sanctions under Rule 37(e), as follows:

1. Must be electronically stored information (“ESI”): Judge Cox found “Plaintiff’s Facebook page constitutes ESI”.
2. Existing during anticipated or actual litigation: Judge Cox found “Plaintiff had a specific duty to preserve this information (i.e., the Facebook page) from the moment it was sought by LLD on July 13, 2020…He obviously knew this information was sought when he discussed the discovery requests with his counsel, and has admitted as much”.
3. Which “should have been preserved” because it is relevant: Judge Cox stated: “Plaintiff made no relevancy objection to the request for his Facebook page. Nor would have such an objection been sustained. The relevance standard is extremely broad”.
4. Was “lost because [ ] a party failed to take [ ] reasonable steps to preserve it”: Judge Cox stated: “Plaintiff has admitted to the spoliation of his Facebook page: ‘Plaintiff acknowledges deleting his Facebook account,’ and he did not consult with his counsel concerning his intent to delete the page…Therefore, (4) Plaintiff not only failed to preserve this information, but he affirmatively caused its spoliation (tangentially close to the time it was requested by Defendants).”
5. Cannot be restored or replaced through additional discovery: Judge Cox stated: “According to Facebook’s own policies, there seems to be no way to recover this information for purposes of the instant civil suit…Plaintiff has offered access to his new Facebook page in lieu of the old one, but the Court has already addressed the fact that this new page would have none of the relevant information sought by Defendants…Plaintiff has also provided Defendants with a download of all the photographs within his cell phone/Android (‘a scattershot of six hundred some photographs,’ according to Defendants…) because when he made a Facebook post, ‘it would have been a photo/image in his cell phone/Android.’…However, this PDF dump is not the panacea Plaintiff hopes…Plaintiff has not provided any metadata associated with these images because they were provided as PDFs rather than in their native format.”

Turning to the issue of intent to deprive. Judge Cox said: “Plaintiff’s destruction of his Facebook was intentional and occurred while on notice to preserve the same. Plaintiff’s explanation for what happened here is balderdash. Plaintiff allegedly ‘deleted his account solely for reasons related to ever increasing online threats and intimidating communications including threats of physical violence related to his political expressions that he posted on the subject Facebook account.’…The Court has been provided no details of these alleged threats and has no way to verify the veracity of this statement. However, as the Court noted ‘…if he wanted to delete political posts, he could have done that. You don’t have to take your whole Facebook page down to do that. People delete stuff all the time. Instead, what he did was he took the whole thing down, and he was on notice that it had been requested of him.’”

With regard to sanctions, Judge Cox, citing DR Distributors stated: “While Defendants urge dismissal as the appropriate sanction here, dismissal of this matter is not an appropriate remedy in the Court’s mind. While a reasonable jurist could rightfully impose that sanction, ‘there are certainly less drastic sanctions available that will remedy the prejudice to [Defendants] and allow the case to be heard on the respective merits.’…In this case, the sanctions the Court has fashioned are tailored toward Plaintiff’s discovery violations because the Court finds the spoliated information, while relevant to damages, does not go to the question of negligence which is the main question the finder of fact will be asked to resolve.”  So, Judge Cox opted to issue jury instructions sanctions, including an adverse inference sanction, in response to the plaintiff deleting his Facebook account.

So, what do you think?  Are you surprised that the Court didn’t grant a case dismissal sanction for the plaintiff deleting his Facebook account?  Please share any comments you might have or if you’d like to know more about a particular topic.

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