A Facebook post, LinkedIn comment, or direct message can become an important piece of evidence in a legal dispute. But social media content can change or disappear quickly, leaving legal teams without information they need to establish what happened.
Organizations and their legal teams need to plan ahead to prevent spoliation of social media evidence, including when social media content should be preserved and how to store it so it doesn’t get lost or tampered with.
This article explains the consequences of social media spoliation, the duty to preserve relevant content, and the practical questions legal teams should ask when evaluating their preservation processes.
What Is Spoliation of Social Media Evidence?
Spoliation of social media evidence occurs when relevant content is deleted, altered, or lost despite a legal duty to preserve it.
It can include public posts and comments, or even photos or videos shared with a limited audience, or direct messages.
Examples include:
- Deleting posts or messages relevant to a dispute
- Editing a caption or comment without preserving the original version
- Deactivating an account and losing relevant content
- Allowing automatic deletion settings to erase messages that should have been preserved
Spoliation doesn’t have to be intentional: it can happen when someone intentionally deletes evidence or fails to prevent its loss. Courts will consider whether the content was supposed to be preserved and whether it can be recovered when deciding if penalties are appropriate.
Consequences of Spoliation of Social Media Evidence
Federal Rule of Civil Procedure 37(e) explains when courts may address lost electronic evidence:
“If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court [may do the following]:”
Court sanctions: Courts may order measures to address harm caused by missing evidence. Under Rule 37(e), intentional loss designed to prevent an opponent from using evidence can also lead to dismissal or a default judgment.
Adverse inferences: If a party causes evidence to be lost to prevent an opponent from using it, the court may presume the missing evidence would have hurt the party responsible for its loss or instruct the jury to make that presumption.
Evidentiary problems: Missing posts, messages, or surrounding context can make it harder to establish what happened, support a claim, or respond to an opponent’s arguments.
Examples of Spoliation of Social Media Evidence
Courts have addressed social media spoliation for more than a decade. The following cases show how preservation failures can affect litigation, from substantial sanctions for intentional deletion to the loss of important context that screenshots alone cannot replace.
Lester v. Allied Concrete Company
An early example of the consequences of social media spoliation came in 2011, when sanctions in the litigation involving Lester v. Allied Concrete Company demonstrated the risks of deleting relevant Facebook content (and MySpace, which was still heavily used at that point).
The plaintiff had lost his wife in a tragic vehicle accident and was suing for wrongful death. Unfortunately, some Facebook photos came to light that his lawyer was afraid would prejudice the case, and he told his client to delete them.
“We do not want blow ups of other pics at trial,” an email from the law firm read, “so please, please clean up your Facebook and MySpace!”
The court did not look kindly on this spoliation of social media evidence. In fact, it resulted in $700,000 in sanctions. The lawyer had to pay $522,000 (and saw his legal career end) for ordering the social media clean-up. His client was fined $180,000 for complying with the request.
Deltondo v. The School District of Pittsburgh
More recent litigation shows that these preservation failures still carry consequences. In Deltondo v. The School District of Pittsburgh, a teacher deleted a Facebook post connected to an employment dispute.
Although screenshots remained, they did not preserve information about who received, shared, or commented on the post. The court found that the missing information harmed the defendants’ ability to defend their case.
The court declined to dismiss the lawsuit in its November 2024 ruling because it could not find that the teacher intended to deprive the defendants of the evidence. However, in a June 2026 order, it required the teacher and her attorney to pay $6,780 in attorneys’ fees associated with spoliation and related discovery failures.
Social Media Data as Digital Evidence
We share so much of our lives on social media that it’s hardly surprising that these communication channels play a major part in many legal matters. Many personal injury lawsuits, for instance, have been foiled by some incriminating social media posts.
One example is Largen v. Reed, during which the plaintiff—who claimed that an accident had left her in severe pain—continued to post photos on social media that showed she wasn’t nearly as incapacitated as she claimed to be.
Even if someone posts a photo with the intention of only sharing it with a handful of close friends and it ends up being entered into evidence in a court of law, it’s unlikely that a judge will view that social media evidence as having been obtained illegally.
“If someone uses a photograph of you and makes it public when perhaps you intended it not to you might be able to have an action against the friend for unfairly depicting you as a drunk, for example. But if you were actually drunk, then I think you're in trouble,
There's no prohibition against taking that photograph. You're out in public. People are just recording that moment. If it's a matter of criminality, it's too bad. If that's an accurate representation of you, that's the strongest evidence of your guilt. So why would we keep it out of evidence?
The prohibition against using illegally obtained evidence applies primarily, essentially solely, to law enforcement. It doesn't apply to another civilian. If you we're foolish enough to let other people know your criminality, well that's too bad.” — Judge Michael Corriero of the New York State Supreme Court.
Social Media ESI Collection and Preservation
Due to the ephemeral stream-of-consciousness nature of many social media communications, a tweet or comment doesn’t necessarily feel like an official piece of electronically stored information (ESI) in the same way that a PDF or even an email does. But the same duty to preserve evidence that applies to other forms of ESI also applies to social media.
“Data residing on social media platforms is subject to the same duty to preserve as other types of [ESI]. The duty to preserve is triggered when a party reasonably foresees that evidence may be relevant to issues in litigation. All evidence in a party’s “possession, custody, or control” is subject to the duty to preserve.
Evidence generally is considered to be within a party’s “control” when the party has the legal authority or practical ability to access it. As an initial matter, social media content should be included in litigation-hold notices instructing the preservation of all relevant evidence.” — Margaret DiBianca for the American Bar Association.
When Must Social Media Evidence Be Preserved?
The duty to preserve relevant social media evidence generally begins when litigation is reasonably anticipated, not just when a lawsuit is filed. A demand letter or credible threat of legal action may trigger that duty. It can also arise after an incident if litigation is reasonably foreseeable.
Once the duty arises, parties should take reasonable steps to preserve relevant content they hold or have the authority to obtain.
This does not mean saving every post or message. Preservation should focus on information that may relate to the claims or defenses in the anticipated dispute.
A legal hold should specifically address social media and tell the people responsible for relevant accounts what they need to retain.
Practical steps include:
- Identify relevant accounts and content: Determine where information related to the dispute may be found and what needs to be preserved.
- Prevent deletion or alteration: Instruct account users to retain relevant content and suspend automatic deletion where necessary.
- Preserve content and context: Capture the original content with surrounding information that helps explain it, such as comments and timestamps.
- Follow up on the hold: Check that preservation instructions are being followed as the matter develops.
How to Prevent Spoliation of Social Media Evidence
To prevent spoliation of social media, there must be a reliable way to capture and retain it. Leaving relevant content on the original platform creates risk: an account user may edit a post, delete a conversation, or close an account before the legal team collects it.
To preserve relevant social media content:
- Capture it promptly: Save relevant content as soon as the preservation need is identified. Posts may be edited or deleted, and some content disappears automatically after a short period.
- Include the surrounding context: Preserve the complete post or conversation, including relevant comments and replies. Retain available timestamps and account details to help establish when the content appeared and who published it.
- Keep a protected copy outside the platform: Store the captured evidence in a secure location with access limited to authorized personnel. Preserve the original capture without modifying it, and use separate copies for review or annotation.
- Document the collection process: Record who collected the content, when it was captured, and which tool or method was used. Keep a record of subsequent handling so the legal team can explain how the evidence was preserved if challenged.
For organization-owned accounts, automated archiving can significantly reduce reliance on employees to save individual posts. Pagefreezer Social Media Archiving captures content from supported accounts and retains it in a searchable archive.
Its legal hold capabilities allow legal teams to protect relevant archived records from deletion under normal retention schedules.
Pagefreezer can also support ongoing preservation as the dispute develops, giving legal teams a central archive to review and keep relevant records on hold. As new information emerges, teams can identify additional archived content that needs protection.
5 Questions About Social Media Corporate Counsel Need to Consider
Due to the increasing relevance of social media data in the realm of litigation, organizations need to put formal systems and processes in place to ensure that relevant social media content is properly preserved.
As mentioned above, social media evidence should obviously not be deleted intentionally, but it’s equally important to ensure that data isn’t accidentally disposed of.
With this in mind, here are five questions in-house legal teams should ask themselves to ensure that data is captured and preserved for potential litigation:
- How easy would it be to find a relevant social media post or comment? Would you be able to quickly find a piece of data from three years ago? What if the piece of content has been deleted from the original platform?
- What does early case assessment look like in the organization? How thoroughly and effectively is the review of social media content being incorporated into this workflow?
- What does the organization’s larger eDiscovery workflow look like? And how is the collection, processing, and review of social media data incorporated into this process?
- How do you integrate data preservation into regular retention scheduling? How easy is it to put a legal (litigation) hold on social media data? Can the legal team confidently preserve social media content without hanging onto large amounts of data unnecessarily?
- How is social media content exported into a defensible format that can be used in court? Can social media data be delivered in a format that is ingestible by modern eDiscovery platforms?
Build Social Media Preservation Into Litigation Readiness
The next legal dispute may involve content that is being published today. Building preservation into everyday operations gives legal teams a stronger starting point when that content becomes relevant to a case.
Pagefreezer helps organizations make that shift with automated social media archiving and tools to protect relevant records as litigation develops. Schedule a demo with Pagefreezer to see how it can fit into your organization’s preservation workflow.
