Frank Gatto v. United Air Lines Inc. Motion for Sanctions Regarding Facebook Spoliation

Frank Gatto, Plaintiff, v. United Air Lines, Inc., Allied Aviation Services, Inc., and John Does 1-10 Defendants.

The Defendants (“United Air Lines”) requested actions against Plaintiff Frank Gatto (“Gatto”) for spoliation sanctions related to the deletion of Gatto’s Facebook account. Specifically, United Air Lines requested that the Court provide instruction to the jury at trial time to conclude an adverse inference against Gatto for not preserving his Facebook account and that United Air Lines be awarded compensation for attorneys’ fees and expenses incurred during both discovery and filing. 


This personal injury suit was filed due to an accident that occurred at John F. Kennedy Airport on January 21, 2008. Frank Gatto alleged that while employed by JetBlue Airlines and unloading baggage from an aircraft he sustained several injuries which resulted in permanent disabilities. These disabilities have limited his physical activities and have rendered him unable to work since July 2008.

United Air Lines, however, argued that Gatto de-activated his Facebook account, which resulted in a loss of all contents. This loss prevented United Air Lines from obtaining information that may have disputed Gatto’s damage claims. The information destroyed could have included physical and social activities that Gatto engaged in and evidence of internet business activities that he pursued.  This information could dispute both Gatto’s damage and his credibility.

Spoliation occurs when evidence is destroyed or significantly modified to prevent its discovery as evidence in pending or future litigation.  One of the spoliation sanctions included issuing a “spoliation inference.” A spoliation inference instruction from the court to the jury, asks the jury to assume that the documents destroyed or not produced, would have been harmful to the party who failed to produce such documents.  The spoliation instruction is based upon common sense and assumes that when a party destroys evidence pertaining to a claim or defense in a case, they do so out of fear that the contents would impair their case. Before issuing an adverse inference instruction to the jury, four factors must be satisfied:

  1. Evidence was in the party’s control;
  2. There was suppression or withholding of evidence;
  3. The evidence destroyed or suppressed was relevant to the claims and defenses; and
  4. Was reasonably anticipated that this evidence would be discoverable.

The deletion of Gatto’s Facebook account satisfied the first, third and fourth factors and the remaining second factor was debatable and briefed by the parties. Gatto contended that he did not intentionally destroy evidence and was never advised that the defense counsel actually accessed his account until it was too late to retrieve the Facebook data. The Court, however, was not persuaded by his arguments.

The court ruled that United Air Lines was prejudiced and a spoliation inference was deemed appropriate. Yet, the Court denied United Air Lines’ request for attorneys’ fees and expenses because Gatto’s actions did not cause them any unnecessary delay. The Court also rejected United Air Lines’ monetary request.


The Court ruled in favor of United Air Lines. The court held that since Gatto failed to preserve his Facebook account and intentionally destroyed evidence, the court granted United Air Lines’ request to issue an adverse inference instruction at trial. Defendants’ request for attorney’s fees and expenses was denied. Read the Court’s full decision here.



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