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Destruction of Facebook Posts Was Spoliation of Evidence

By Allen Smith  3/25/2014
When a lawsuit is brought, evidence can’t be willfully destroyed without serious consequences. That includes online social media posts that might be evidence in the case, according to a March 18, 2014, decision by the U.S. District Court for the District of Nevada.

The case involves a sexual harassment claim by Heather Painter, who worked for a dentist, Aaron Atwood. She alleged he climbed on top of her with his pants undone and held her down. After allegedly suffering extreme emotional distress, she quit and filed a lawsuit against him.

Atwood disputed her recollection, claiming that he was attempting only to tickle her and that the sexual nature of their relationship was consensual.

Enthusiastic Posts

Atwood maintained that Painter intentionally destroyed Facebook posts and text messages that contradicted her claims and deposition testimony.

Specifically, while employed at Urgent Dental, she posted Facebook comments and pictures about the business and the Atwoods. In her posts she went on about how much she enjoyed her job, how the practice was a great place to work, and how Atwood was a great boss whom she liked working with. The dentist was aware of these posts because his wife, Kelly Atwood, was friends with Painter until Painter unfriended her.

Painter’s attorney argued that the Facebook posts were irrelevant because the plaintiff already admitted she enjoyed working for Atwood and her constructive-discharge claim was based entirely on the incident just before she quit. Also, her counsel argued, Painter is a 22-year-old “girl” who would not have known better than to delete her Facebook comments.

The court rejected both arguments. “First, plaintiff’s Facebook comments discussing her opinion on working and interacting with defendant Dr. Atwood are directly relevant to this litigation,” the court stated. “Plaintiff’s entire lawsuit centers around her assertion that the work environment at defendant Dr. Atwood’s dental practice was sexual in nature. Indeed, as plaintiff’s counsel discussed extensively during the hearing, plaintiff believes that defendant Dr. Atwood is a ‘sexual predator’ who requires his employees to accept his sexual advances or be fired. Thus, there is no question that plaintiff’s Facebook comments relating to defendant Dr. Atwood are relevant.”

Moreover, “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 said. “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.”
The court concluded 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.”

Irrelevant Deletions

As for the deleted text messages, the court found that Painter wasn’t aware at the time that she should save them, since she didn’t contact an attorney until a month after she resigned and didn’t delete any texts after she left Urgent Dental.

Painter also removed Facebook photographs of her on a cruise with Atwood and his family, but the Atwoods had their own copies of those and introduced them during Painter’s deposition.

The court considered dismissing Painter’s claim as a sanction for her destruction of evidence but rejected that option as too harsh. Instead, it decided the trial court will give an adverse inference instruction to the jury about the destroyed evidence, meaning the jury can hear what the evidence was and draw the conclusion that it was destroyed to hide something that would have hurt the case of the person who disposed of the evidence.

The case will proceed to trial.  

This decision is Painter v. Atwood, 2:12-cv-01215 (D. Nev. 2014).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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