Professor Garfield brought up Spoliation of Facebook evidence in an earlier post, and that got me thinking.
There’s intentional spoliation – where a party makes the decision to destroy evidence to avoid responding to a discovery request, or to ensure the evidence is never found – but there’s also unintentional spoliation.
The link above directs you to an Above the Law blog post – describing how the Plaintiff in a wrongful death action lost, after trial, big time, when it became clear he deleted his Facebook page intentionally, so that he could “claim” he didn’t have one. The case has pretty awful details – a young 25 year-old bride killed in a motor vehicle accident, and her husband had some photos of himself partying. His lawyers wanted the pictures down – he sure didn’t look like he was in mourning wearing a “I Love Hot Moms!” t-shirt… so that’s intentional spoliation.
But how about when you remove something from your Facebook Page, or your Twitter Feed, or your Linkedin Profile? Lots of college students who started using Facebook circa 2006 might have posted photos that they’d be pretty embarassed about today – and a lot of those students have removed those types of photos as Facebook has grown in scope and popularity. But I think of other types of unintentional spoliation, too – what if someone ELSE posts a photo of you that’s in poor taste, and you “remove tag” – you’ve “destroyed” the link to yourself, but the photo still exists. Is the removal of the link a type of spoliation? Don’t you have the RIGHT to remove the link to yourself if you didn’t post the photo? What if you ask Facebook to remove the photo in its entirety – could that be viewed as potential spoliation in a later suit?
These questions are going to be critical as this issue arises again and again in litigation with social media aspects.