Spoliation — Adverse Inference Instruction Appropriate for Deactivation of Facebook Account Shortly after Initiating Lawsuit and Producing Only Substantially Illegible Printouts of Contents

Abeyta v City of N.Y., 2014 U.S. App. LEXIS 23480 (2d Cir. Dec. 15, 2014):

Plaintiff Andrew Abeyta appeals from the District Court's November 22, 2013 judgment, after a jury trial, in favor of defendants on his claims for false arrest, excessive force, and First Amendment retaliation pursuant to 42 U.S.C. § 1983 and various state laws, and from its March 7, 2014 order granting defendants' motion for attorney's fees pursuant to 42 U.S.C. § 1988. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

I. Evidentiary Rulings

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The District Court also did not err in issuing an adverse inference instruction in connection with plaintiff's deactivation of his Facebook account shortly after initiating this lawsuit. Plaintiff conceded that the account contained [*3]  relevant pictures and information that were no longer available as a result of his actions. Defendants' spoliation motion at trial was not untimely because defendants had previously requested, and the Court had previously ordered, that plaintiff produce the Facebook account information, and plaintiff produced only paper versions that were substantially illegible.

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