Partner Patrick W. Kenny Successfully Obtained a Spoliation Order in a High Exposure Labor Law Case

Partner Patrick W. Kenny successfully obtained a spoliation order in a high exposure Labor Law 240(1) matter where the plaintiff intentionally deleted his Facebook account after the defendant's requests both during discovery and at the plaintiff’s deposition that the social media materials be preserved. Brazenly, after exchanging only select Facebook Messenger exchanges, the plaintiff affirmatively moved for a protective order to prevent any further disclosure of his social media accounts. Mr. Kenny opposed and the Court ordered the plaintiff to produce the social media authorizations. However, the plaintiff had already deleted his Facebook account.

The Court ruled that plaintiff’s intentional deletion of his Facebook account, which included statements of co-workers regarding the accident and photos of the plaintiff at the gym after the accident, plaintiff was precluded from testifying at trial as to anything related to social media along with an adverse inference instruction at trial due to the destruction of the evidence.

This is an important decision because it shows that plaintiffs cannot play games with discovery rules surrounding social media and that BMM’s attorneys stand ready to move for sanctions against plaintiffs that do.