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This case involves a personal injury lawsuit filed by Plaintiff Paul Torgersen, who claims he suffered an electrocution and fall at a construction site on June 14, 2017. He is seeking damages for personal injuries and lost wages. At the center of the dispute is Plaintiff's deleted Facebook account, which Defendants argue contained evidence that could counter Plaintiff's claims of suffering, showing him participating in physical activities like golf and other recreational pursuits. This could suggest that Plaintiff was not as physically incapacitated as he claimed. Defendants filed a motion in April 2021, accusing Plaintiff of spoliating evidence by deleting his Facebook account after it was requested as part of discovery. The Court found that there was a credible allegation of evidence spoliation and ordered further briefing on the matter.
In July 2020, after Defendants served written discovery on Plaintiff, requesting details about his social media accounts, Plaintiff deleted his publicly viewable Facebook account on August 31, 2020. Plaintiff's legal counsel had previously instructed him not to delete the account, but Plaintiff claimed he did not remember this directive when he took down the page. Facebook’s policy states that once an account is deleted, it is permanently erased after 30 days, making it impossible to retrieve the deleted content for the case. Plaintiff later objected to disclosing information about his Facebook page, citing privacy concerns, but the Court overruled this objection, asserting that there is no reasonable expectation of privacy in information shared publicly on platforms like Facebook.
Defendants moved for sanctions under Federal Rule of Civil Procedure 37(e), which governs the failure to preserve electronically stored information (ESI) in litigation. The rule allows sanctions if the lost information was relevant, should have been preserved, and cannot be restored or replaced through additional discovery. The Court found that Plaintiff had a duty to preserve his Facebook account from the moment Defendants served their discovery request, as it was relevant to the case. Plaintiff’s deletion of his Facebook account was not a simple mistake but an intentional act that resulted in the loss of relevant ESI. The Court ruled that Plaintiff’s failure to preserve the account was intentional and prejudiced the Defendants, who would be unable to fully investigate the nature and extent of Plaintiff's claims without access to the deleted evidence.
The Court then addressed Plaintiff’s reasoning for deleting his Facebook account, which he attributed to online harassment related to his political posts. However, the Court found this explanation lacking credibility, especially given that Plaintiff could have taken less drastic steps, such as blocking or restricting specific users, without deleting the entire account. Additionally, Plaintiff’s shifting explanations about his counsel's communication and the timing of his deletion further cast doubt on the veracity of his claims. The Court found that Plaintiff’s actions were not an inadvertent mistake but part of a deliberate effort to prevent Defendants from accessing damaging evidence that could undermine his claims of injury and damages.
The Court included the following decision tree in determining if there was cause for Rule 37(e) sanctions:
In conclusion, the Court imposed sanctions on Plaintiff for his intentional spoliation of evidence but did not dismiss the case. Instead, the Court decided that the appropriate sanction was to instruct the jury on the loss of Plaintiff’s Facebook evidence. The jury would be told that Plaintiff had a duty to preserve the Facebook page, that he deleted it intentionally, and that the lost information could not be recovered. The Court also issued an adverse inference instruction, meaning the jury must presume that the deleted Facebook content was unfavorable to Plaintiff’s claims. The motion for sanctions was granted, but the case would proceed with these sanctions in place to mitigate the harm caused by the destruction of evidence.
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