Chief Judge Finds That Alteration of Facebook Page Can Lead to Spoliation Inference

http://ow.ly/82uAD

An article by Mara E. Zazzali-Hogan posted on the e-Discovery Law Alert blog of the law firm Gibbons.

This article discusses the case of Katiroll Company, Inc. v. Kati Roll and Platters, Inc. et al . in which plaintiff sough sanctions against the defendant based on spoliation allegations for evidence existing on the social media network Facebook.

The article states that one of the alleged violations, which was the action taken by the defendant to remove a Facebook page, was done at the request of the plaintiff, so there was no sanction for that action.

With respect to the other issue, the court ordered the defendant to re-post a specific picture on the site that was involved in a trademark dispute, so that the plaintiff could have access to the picture.  The court provided some information regarding the analysis they used to reach the decision, "The Court recited the four requirements for a spoliation inference, which the Chief Judge described as the mildest of sanctions: (1) whether the evidence was in the party’s control; (2) whether the evidence was actually suppressed or withheld; (3) whether the evidence was relevant vis-à-vis the claims or defenses at issue; and (4) whether it was reasonably foreseeable that the evidence at issue would subsequently be discoverable. The Court concluded that the most important consideration in determining what level of fault is required to support the second factor (an issue that is disputed within the District) is the degree of prejudice to the movant. Specifically, the Court concluded that a negligence standard may be appropriate if there was substantial prejudice whereas intentional conduct would be required if minimal prejudice resulted."