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New Jersey Federal Court Rules Facebook Posts Could Be Used as Evidence

Attorney Francis M. Smith warns of potential legal risks of social media's online data

MOUNTAINSIDE, N.J., May 21, 2013 /PRNewswire/ — Parents warn their teenagers about Internet dangers, from cyber bullying to potential predators, but may not realize the personal legal risks they face themselves when using social media such as Facebook and Twitter. A recent federal court in NJ has ruled online posts may be discoverable as evidence in some legal cases. "Any post made – no matter what privacy settings are made – could be used in court cases in NJ," warns Francis M. Smith, Esq., NJ personal injury attorney with offices in Mountainside, Morristown and Allendale, NJ.

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The ruling by a Magistrate Judge with the United States District Court in the District of New Jersey has taken a big step toward the forced disclosure of online social media postings as possible evidence in court cases and lawsuits. Specifically, content posted to social media websites may be considered evidence and is subject to the same laws against evidence tampering as physical documents. In the case of Gatto v. United Airlines and Allied Aviation Services., et al., No. 10-CV-1090 (D.N.J. March 25, 2013)., Frank Gatto, a former baggage handler at John F. Kennedy Airport, sued United Airlines and Allied Aviation Services for damages following a workplace-related injury which he claimed left him permanently disabled, impairing his ability to work or engage in social activities.

To refute his claims, the defendants sought legal authorization to access Gatto's Facebook account, which they believed would contain evidence showing that Gatto's ability to work and socialize had not been as severely curtailed as he claimed.

In December 2011, a U.S. Magistrate Judge instructed Gatto to authorize access to his Facebook data, and Gatto agreed to change his Facebook password to one provided by the defendants.

Although the defendant could not access the data through Facebook's corporate channels, the defendant was entitled to obtain the data directly with Mr. Gatto's login and password access. Facebook claimed that Stored Communications Act prevented them from releasing the data. However, Gatto had deactivated his Facebook account and its contents were automatically deleted after 14 days.

On June 29th, 2012, the defendants moved to have Gatto sanctioned by the court for the destruction of evidence that they believe would have shown that Gatto was indeed able to travel, socialize, and maintain an eBay business, refuting his claims about the severity of his damages.

U.S. Magistrate Judge Steven Mannion ruled that the deletion of data in Gatto's Facebook account constituted "spoliation of evidence," defined as the negligent or intentional destruction, alteration, or withholding of evidence relevant to a legal proceeding. This resulted in an adverse inference against Gatto – the inference that when a party destroys evidence relevant to a legal case, they did so because that evidence was unfavorable to them.

"The implications that this ruling has for the status of social media data reach far beyond a single case," Mr. Smith reports. "The ruling in Gatto v. United Airlines affirmed that information posted to social media sites like Facebook could, under some circumstances, be made available to opposing attorneys in legal proceedings for civil cases, and that the owners of social media accounts do not have full disposition over those accounts when the data within them is requested to support or refute legal claims," Mr. Smith warns. Adverse consequences including monetary sanctions can be imposed.

"On the other hand," Smith says, "social media should be explored to provide graphic evidence of injury. If an active lifestyle is very evident from a user of Facebook, for instance, right up to the date of the accident under consideration, and there are no entries thereafter except about recovery from the injuries, surgery, physical therapy, and the effects of the injuries suffered, the discovery of such evidence certainly confirms the plaintiff's claims of injury, pain, suffering, and loss of enjoyment of life," Smith explains.

For questions regarding legal issues concerning injuries, Francis M. Smith, Esq. can be contacted at 888-233-1272, at Email, or online at  For more information, visit

If you'd like more information about this topic, or to schedule an interview with Francis M. Smith, Esq. please call 908 233-5800 or email Frank at Email.

Francis M. Smith, Esq.
Office: 908-233-5800
Cell: 908-337-5888