You may have read about employees who were “Facebook fired” and the tale about a single post that resulted in the loss of $80,000.00 to one family.
Now, there is a recent case from a federal court in Nevada that focuses on the intentional deletion of posts and texts.
In the case of Painter v. Atwood, a 22-year old woman worked for a dentist (Dr. Atwood) at Urgent Dental. According to the Plaintiff, Dr. Atwood “climbed on top of her with his pants undone and held her down.” She alleged extreme emotional distress and sexual harassment, and quit her job.
One or two months after this alleged incident, Plaintiff retained Ruth Cohen, an attorney, to represent her in a lawsuit against Dr. Atwood. During this litigation, Dr. Atwood denied that the alleged event occurred, and also claimed that the sexual nature of his relationship with Plaintiff was consensual.
Like most 22-year olds, Ms. Painter had a Facebook account. Dr. Atwood was aware of it because Ms. Painter and Dr. Atwood’s wife were Facebook friends until Ms. Painter “unfriended” his wife.
Arguing Over Deleted Posts
During the discovery phase of the litigation, Dr. Atwood’s attorney requested that Ms. Painter produce various Facebook comments and photos she had posted, and various text messages as well. Ms. Painter, however, could not supply the requested evidence because she had deleted the comments, photos and texts. Dr. Atwood’s attorneys then filed a motion regarding the spoliation of evidence and for sanctions against Ms. Painter for her allegedly intentional destruction of evidence.
Dr. Atwood’s attorney wanted those posts because Ms. Painter had commented on Facebook about how much she enjoyed her job, how Urgent Dental was a great place to work, how Dr. Atwood was a great boss, and how she enjoyed working with him.
According to the Court, Ms. Cohen, Plaintiff’s attorney, conceded that Plaintiff deleted Facebook comments, and that she deleted those comments after she retained Ms. Cohen for this litigation. Ms. Cohen argued, however, that those Facebook posts were not relevant because Plaintiff had already admitted to enjoying working for Dr. Atwood. Ms. Cohen further asserted that “Plaintiff is a 22-year old girl who would not have known better than to delete her Facebook comments.”
The Court’s Decision
The Court rejected both of Ms. Cohen’s arguments. First, the Court determined that Plaintiff’s Facebook comments discussing her opinion about working and interacting with Dr. Atwood are directly relevant to the litigation. The Court wrote “Plaintiff’s entire lawsuit centers around her assertion that the work environment at Urgent Dental was sexual in nature.” Indeed, according to the Court, as Plaintiff’s counsel discussed extensively during the hearing, Plaintiff believes that Dr. Atwood is a “sexual predator” who requires his employees to accept his sexual advances or be fired. Thus, the Court concluded that there is no question that Plaintiff’s Facebook comments relating to Dr. Atwood are relevant.
Also, the Court found that “it is of no consequence that Plaintiff is young or that she is female and, therefore, according to her counsel, would not have known better than to delete her Facebook comments.” The Court emphasized that once “Plaintiff retained counsel, her counsel should have informed her of her duty to preserve evidence and, further, explained to Plaintiff the full extent of that obligation.” Ultimately, “based on Plaintiff’s counsel’s representations during the hearing and the totality of the circumstances, the Court finds that Plaintiff knew or should have known that the at-issue Facebook comments were relevant to Defendants’ case at the time she deleted them and, therefore, there was some degree of culpability in the destruction of the above-mentioned Facebook comments.”
As a result, the Court next addressed what remedy it should provide to Dr. Atwood in this situation. The Court analyzed whether it should dismiss Plaintiff’s case, but determined that such a remedy was too harsh. The Court then determined that the jury would be given an “adverse inference instruction.” Simply, the Court will tell the jury what the deleted evidence was, and that the evidence was likely deleted in order to conceal something that would have been harmful to the person who destroyed the evidence.
Lessons To Learn From This Case
1. As usual, be careful what you post about your workplace on your personal social media sites. Hesitating just a moment before robotically posting every detail about work may save you in many obvious and not-so-obvious situations. And, know that even the “positive” posts about your workplace may come back to haunt you.
2. Be careful about deleting posts. Simply, if it’s already posted, then it is public (and see #1. above). And, certainly, if you are in the midst of, or contemplating a lawsuit, whether against an employer, or some other party, do not delete posts without first consulting with experienced legal counsel.
4. If you find yourself in a situation where you may have a legal claim, be sure to retain top-notch legal counsel. You would not want a meritorious case to be harmed by the failure of your attorney to provide you with basic legal advice, like, do not destroy potential evidence. In fact, most legal counsel will have a discussion about social media posts early in the representation.
5. Businesses involved in litigation or potential litigation typically engage in a “litigation hold” so that they do not inadvertently destroy evidence. This litigation hold would include practices like notifying relevant employees to stop deleting email, texts, electronic data, and other evidence, and to suspend aut0-destruction practices the business might routinely engage in (like copying over video-tape every two weeks, or purging email accounts every thirty days, or the like).
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation. No attorney-client relationship is created via this website.