Last month, a daughter’s Facebook post cost her father an $80K age-discrimination settlement (more on that here).
Last week, with some Facebook shenanigans, the plaintiff in a sexual harassment case screwed herself over.
(See what I did there?)
Heather Painter used to work for Dr. Aaron Atwood D.D.S.
According to Ms. Painter, one day at work, the good doctor — err, dentist — just happened to climb on top of her with his pants undone and held her down.
Dr. Atwood didn’t exactly deny those allegations; however, he claimed that he was only attempting to tickle Ms Painter* and that the sexual nature of their relationship was consensual.**
[* Editor’s Note: Like, with his penis? Ok, just kidding….]
[** Editor’s Note: Ms. Painter was Dr. Atwood’s babysitter too. Not kidding about that.]
Anyway, during litigation, the defendants, the dentist and his practice, wanted to obtain copies of Facebook posts from Ms. Painter in which she supposedly commented 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
under with him.
Ms. Painter’s counsel conceded that her client deleted those Facebook comments and that she deleted those comments after she retained counsel for this litigation. However, Ms. Painter argued that she should avoid court sanctions because the posts were not relevant and Ms. Painter was only 22 and didn’t know any better that it’s improper to destroy potentially relevant evidence after you sue someone.
The Court was, shall we say, non-plussed (opinion here):
“Plaintiff had an obligation to preserve her Facebook comments; she deleted the comments with a culpable state of mind, and the comments were relevant to Defendants’ claim. Although Plaintiff’s counsel may have failed to advise Plaintiff that she needed to save her Facebook posts and of the possible consequences for failing to do so, the deletion of a Facebook comment is an intentional act, not an accident, and the Court cannot infer that Plaintiff deleted Facebook comments which stated that she enjoyed working for Defendant Dr. Atwood, after she contemplated the instant litigation, for an innocent reason.”
To sanction the plaintiff, the Court ordered the factfinder (i.e., the jury) should infer that the deleted Facebook posts undermine Ms. Painter’s sexual harassment claims. Next to outright dismissal of the case, this is as bad a sanction as a court can order.
Given the potential that social media evidence can have on claims and defenses in an employment case, judges, like the one in the Painter case, do not tolerate intentional destruction of relevant social media content. Even accident erasure of this information may result in sanctions.
So, to all you employees and employers out there, be aware that, once there arises a reasonable anticipation of litigation, all potentially relevant evidence — including social media content — must be preserved. This is especially important for employers (and their counsel) who may be responsible for informing multiple employees of this duty to preserve.