Spoilation of evidence

Does this happen – has it happened to you?

The complaining witness has a Facebook or other social media page, or texts on their phone, or emails — and they complaining witness decides to delete them (or does so because law enforcement or a “victim advocate” tells them to).

Why is this not spoilation of evidence and why can’t you get an adverse inference instruction, especially when you can show relevance.

What happens if a litigant deactivates his Facebook account because of some combination of items on it that could be embarrassing, both litigation-wise and personally. Of course, a good deal likely depends on the exact nature of the lawsuit and the precise nature of what was on the litigant’s Facebook page. But, as the recent opinion of the United States District Court for the District of New Jersey in Gatto v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J. 2013), makes clear, the litigant could be guilty of spoliation of evidence, allowing for the giving of an adverse inference instruction.

h/t Prof. Colin Miller