Ride the Lightning

Is Deactivating a Facebook Account Spoliation? Nonsense!

June 6, 2013

There was a lot of hoo-ha on the airwaves recently about a federal district court case in New Jersey, Gatto v. United Air Lines, Inc. The case was decided in March, and the takeaway for some was that deactivating a Facebook account could be held to be spoliation.

The opinion is not well worded with respect to this issue. Plaintiff claimed that he deactivated (not terminated) his Facebook account – he blamed Facebook for "automatically terminating" his account within 14 days of the deactivation.

The court imposed sanctions on the Plaintiff but the opinion contains this footnote:

"There is some dispute between the parties regarding whether the Plaintiff did, in fact, merely deactivate the account and then neglect to reactivate it within fourteen days, thus causing the account to be “automatically deleted.” As noted by Defendants, the procedures for deactivating versus permanently deleting a Facebook account are not identical. (See Defendants’ Brief in Support of Motion at *12, D.E. 33-4). While Plaintiff argues that his account was merely deactivated, it appears from the record that Plaintiff must have taken additional steps required to permanently delete his account. See id. For the purposes of deciding the instant motion, the Court finds that it is irrelevant whether plaintiff requested that his account be deleted or merely deactivated, as either scenario involves the withholding or destruction of evidence."

There is little doubt in my mind, and apparently the Court agreed, that the Plaintiff took affirmative steps to delete his account. Deactivation is not deletion – it fact, the data is preserved and can be reactivated at any time.

If deactivation were used to withhold relevant information, it would seem that a Motion to Compel production would have sufficed, but here the information was gone, suggesting termination rather than deactivation.

Many family lawyers we have lectured for have told us that they advise clients to deactivate their Facebook accounts precisely because the information is preserved without the client blundering off on an active account doing themselves further damage.