In Painter v. Atwood, No. 2:12–CV–1215 JCM (NJK), 2014 WL 3611636 (D. Nev. July 21, 2014), U.S. District Judge James C. Mahan affirmed Magistrate Judge Nancy Koppe's order granting spoliation sanctions following the plaintiff’s destruction of social media evidence.  Because the plaintiff did not dispute a defense witness’s declaration that the plaintiff had failed to produce favorable Facebook posts, the magistrate issued an adverse inference instruction that the “destroyed evidence” was “detrimental to Plaintiff’s claims.”  The District Court found no error in this sanction.

Per the magistrate’s opinion (Painter v. Atwood, No. 2:12–CV–1215 JCM-RJJ, 2014 WL 1089694 (D. Nev. March 18, 2014)), the plaintiff and the defendant’s wife were Facebook ‘friends’ until shortly after the plaintiff retained counsel and filed suit alleging that the defendant had sexually assaulted her at work.  The defendant countered that the relationship was consensual, and offered his wife’s testimony that the plaintiff routinely commented on Facebook how she loved working with the defendant and how enjoyable her job and job environment were.  These posts had not been produced, and were apparently no longer available.  On this record, the magistrate made two key findings: first, that this lawsuit directly implicated the plaintiff’s working conditions, therefore social-media comments discussing her work and interaction with the defendant were “directly relevant”; second, and more significantly, that it was no excuse that “Plaintiff is a 22–year old girl who would not have known better than to delete her Facebook comments.”  Rather, highlighting the plaintiff’s counsel’s obligations, the court noted: “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.”  Accordingly, even if the plaintiff’s counsel “failed to advise Plaintiff that she needed to save her Facebook posts and of the possible consequences for failing to do so,” the plaintiff’s intentional deletion of Facebook content could not be characterized as “innocent” or “an accident”, but rather, was done with “a culpable state of mind.”

The District Court denied the plaintiff’s motion for reconsideration.  Ignoring the plaintiff’s counsel’s concession that his client deleted this evidence, the court found it reasonable for the magistrate to have inferred the existence of the evidence merely from the plaintiff’s uncontested declaration, and from the plaintiff’s failure to produce, that the evidence had now been destroyed.  Nor was the finding of prejudice a stretch, as such postings could very well have a “prejudicial effect which could not be remedied through witness testimony.”