How careful do you have to be when you are deleting Facebook posts and texts of relevant, discoverable material?

Watch Out, Facebook Posts and Texts Can Be Discoverable Material!

In this case, the Plaintiff Ms. Veronica Painter is suing her employer, Defendant Aaron Atwood, D.D.S. Painter claimed that while she was at work, the dentist climbed on top of her with his pants down and held her down. Painter suffered extreme emotional distress as a result. The defendant argues that he merely tickled her and that they had a consensual sexual relationship.

The discovery issue in this case arises because the defendants asserts that the plaintiff and her two main witnesses intentionally destroyed text messages and Facebook posts that contradict the plaintiff’s claims and deposition testimony. Specifically, the defendants allege that while the plaintiff was employed at Urgent Dental, she posted Facebook comments and pictures regarding Urgent Dental and the Atwood’s, including comments about how much she enjoyed her job, how Urgent Dental was a great place to work, and how Dr. Atwood was a great boss and she enjoyed working with him. The defendants assert that they know these posts existed because Dr. Atwood’s wife, Kelly Atwood, was friends with the plaintiff on Facebook at the time.

Concerning Facebook photographs, the plaintiff admitted that she posted to Facebook pictures taken while on a cruise with Dr. Atwood and his family. Painter testified, however, that she removed those photos sometime after she retained counsel because she randomly deletes albums from Facebook “on a constant basis.”

In regard to the text messages, Painter testified that she randomly deleted text messages while she was employed at Urgent Dental. The plaintiff stated that she tried to get those text messages from her carrier, but was unable to do so. Additionally, the plaintiff stated that she replaced her phone in October 2011.

Spoliation of evidence is defined as “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. The court analyses the issue of spoliation by looking at the evidence that the text and Facebook messages at issue existed.

In regards to the Facebook posts, the court finds that the posts existed and were subsequently destroyed. At the hearing, the plaintiff’s counsel, Ruth Cohen, stated that Painter did not contest the existence of such Facebook posts. Therefore, the court concludes that these posts existed and, because they have not been produced, were destroyed. The court found that the 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.

In regard to the plaintiff’s text messages, the court found that the plaintiff was not on notice to preserve the deleted texts at the time she deleted them. Painter specifically stated during her deposition that she did not delete any texts after she left Urgent Dental. Additionally, Painter stated that she tried to retrieve past texts from her carrier, but was unable to do so. Therefore, the plaintiff’s deletion of text messages does not meet the culpability or notice requirement for spoliation sanctions.

The takeaway message is spoliation sanctions can be given for deleted Facebook posts, but not deleted texts in some instances.

Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of patent law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated cum laude from UCLA and completed graduate work in biomedical science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks.

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