Facebook: Deactivation v. Deletion; Authentication With Native Files; and, Searching

As one of the most popular social media sites, Facebook is the subject of numerous ESI cases.  Three recent decisions address deactivation v. deletion, the value of native Facebook files when authentication is disputed, and the search for responsive information.

• DEACTIVATION OR DELETION?

Brown v. SSA Atlantic, LLC, 2021 WL 1015891 (S.D.Ga. Mar. 16, 2021), explains the differences between deactivating a Facebook account and deleting one.  After “deactivation,” the account may be recoverable.  “Deletion” is more permanent.  Id. at *3.  Deactivation may not be spoliation and may, instead, support only a lesser discovery violation.  Id.

In Brown, the court could not determine that Brown had destroyed the Facebook data and, instead of Rule 37 sanctions, it ordered production.  Id. at *5.

However, Brown had not been candid.  His discovery responses first stated that he had only one Facebook account.  Later, he admitted to having three “burner” Facebook accounts.  Id. at *1.  A “burner” account may be created under a fictitious name, using a temporary cell number and email address.

Further, Brown initially asserted that the account was deactivated before the alleged tort; later, he admitted it was deactivated after the tort.

In the court’s view, this was “troubling.”  While spoliation sanctions were not imposed, the court directed Brown’s attorney to show cause why Rule 26(g)(3) sanctions were not appropriate for a possible failure to make reasonable inquiry before signing inaccurate discovery responses.

For a similar holding in the District of Maryland, see “The Duty of Inquiry and Sanctions for Failure to Investigate Client’s Claim” and “District of Maryland’s Recent Application of Spoliation Doctrine in Discrimination Case.”

• USE OF NATIVE FILES WHEN AUTHENTICATION IS IN DISPUTE

In Edwards v. Junior State of America Foundation, 2021 WL 1600282 (E.D.Tex. Apr. 23, 2021), where authenticity of Facebook messages is denied, retention of screen shots is insufficient to fulfill the duty to preserve ESI.  Static images (screenshots) do not have the authenticating information that comes with native images.  In Edwards, deletion of plaintiff’s Facebook account plus destruction of downloaded native images after a claim had been made supported sanctions.

Defendant, Junior State of America Foundation (“JSA”), ran a program permitting high school students to play a role as government actors.  Plaintiff Edwards was black.  His father filed a complaint with JSA that another student, Harper, had sent discriminatory Facebook messages to plaintiff.  Edwards also alleged that he had been denied a position in Harper’s “cabinet.”

JSA investigated.  It searched Harper’s phone and found no evidence that he had sent the alleged messages.  It found that the JPEG screen shots that Edwards provided were incomplete.  JSA asked Edwards for actual screen shots and other information.  Edwards did not provide that information.  JSA then determined that there was insufficient evidence to conclude that Harper had sent the messages.

Edwards sued.  JSA propounded discovery and, as permitted by the Federal Rules, specified the form of production as HTML, i.e., the native form.  JSA also explained how to produce in that form.  In the court’s words: “JSA thus sought native files for a self-evident reason: authentication of the Messages.”

JSA’s discovery was focused.  It was “principally aimed at obtaining a single file, the alleged racist and homophobic Messages between Cole Harper and Edwards, Jr.”  For nine months JSA sought, but did not receive, responses.  JSA then moved to compel and for sanctions, and the motion was granted.

Plaintiff Edwards then belatedly disclosed an expert and produced some data.  “Significantly,” the “belated disclosures did not include the native Facebook-message files….”  JSA moved to dismiss under Rule 37.  It produced expert evidence that fake Facebook conversations can easily be created; however, it would be very difficult to do so on the Facebook platform itself.  JSA’s expert opined that screenshots “must be validated against the Facebook data itself.”  In short, JSA demonstrated a need for native production because authenticity was in issue.

Plaintiff Edwards then disclosed that the native-file messages had been permanently deleted. The court analyzed this under Rule 37(c) and (e)(1).  It noted that plaintiff had delayed four-and-a-half years before identifying its forensic expert and after the court milestone for expert disclosures.  Citing the disruption to the orderly progress of the case, the court excluded plaintiff’s experts.

It then turned to Rule 37(e).  It wrote:

Here, the screenshots will not suffice as an “original” because the screenshots are not an “output” that “accurately” reflect the information. Only native files can ensure authenticity. Additionally, although the Best Evidence Rule allows for an original “photograph” to prove the contents of the photograph, this does not mean that the screenshot here can be used to prove that Harper sent the Facebook Messages contained in the screenshots. Instead, the screenshots prove only that Edwards, Jr. took a screenshot containing what appears to be Facebook Messages—not that the Messages are authentic or that Harper indeed sent the Messages. Second, however, one need not be familiar with the Best Evidence Rule to understand that the actual Messages may be important in proving that someone sent the Messages in question and that screenshots may be insufficient to that end. That the actual Messages may be relevant to the instant litigation is self-evident. Accordingly, the Edwardses had a duty to preserve the native files, i.e., the actual alleged Facebook Messages, because plaintiffs had either actual or constructive notice as to the files’ relevance.

Remarkably, plaintiff’s expert had obtained forensic images of the messages; however, its contract with plaintiff called for retention only for a year, and it had destroyed them.  The court wrote:

To preserve the ESI in question, Edwards, Jr. needed only to not permanently delete his Facebook account long enough to download the files in question, a step which requires only a brief series of clicks and a matter of seconds to accomplish…. First, one can deactivate a Facebook account temporarily. Edwards, Jr. did not elect to temporarily deactivate his account; rather, at some point between his supposedly taking screenshots of the alleged Messages and September 2020, Edwards, Jr. permanently deleted his Facebook account, thus permanently barring access to the files in question. Clearly, Edwards, Jr.’s failure to keep his Facebook account active long enough to download the files in question constitutes a brazen failure to take reasonable steps to preserve the pertinent ESI. In fact, Edwards, Jr.’s permanent deletion of his Facebook account after the conduct in question and potentially during the midst of this litigation raises serious questions about deliberate spoliation of evidence, although JSA has not at this point met its burden to show by a preponderance of evidence such willfulness.

• ORDERING COUNSEL TO SEARCH ESI

In Hampton v. Kink, 2021 WL 122958 (S.D.Ill. Jan. 13, 2021), defense counsel was ordered to search their clients’ ESI.

Plaintiff, a former inmate, sued a group of correctional officers, alleging unconstitutional conditions of confinement.  Each party sought Facebook discovery from the other.

Plaintiff’s Facebook posts were all public.  The court had no difficulty ordering plaintiff to turn over her Facebook “handle” — her public username – – to defense counsel.  That satisfied defendants’ request.

Plaintiff, however, sought discovery of both a private Facebook page operated by correctional officers and information from the officers’ private, personal Facebook accounts.

Additionally, plaintiff “seeks an order compelling counsel for Defendants [the State Office of the Attorney General] to conduct the search of electronically stored information (ESI) on behalf of Defendants and determine what information is subject to this order before producing the same.”  Id. at *3.

After determining that the information requested was relevant, the court ordered that “counsel for Defendants shall be required to produce this information to [plaintiff] within thirty days.”  This order had three components:

• Counsel were ordered to search the private Facebook page;
• Counsel were ordered to search each Defendant’s Facebook pages; and,
• Counsel were ordered to search each Defendant’s activity log and present a list of any activity pertaining to plaintiff.

The court did not explain why defense counsel, as opposed to each defendant, was tasked with these duties.