Even Anti-Dentites Have Duty To Preserve

Painter v. Atwood, 912 F. Supp. 2d 962 – Dist. Court, D. Nevada 2012

In this case from March, plaintiff Painter accused defendants, including her former boss Dr. Atwood, a dentist, of sexual misconduct at the dental office where Painter and Atwood once worked together. Defendants stated that the conduct was consensual and filed a Motion for Spolitaion Sanctions related to deleted text messages and Facebook posts relevant to the litigation.

Defendants argued that the texts and posts in question contradicted plaintiff’s claims that she suffered emotional distress as a result of the alleged misconduct; plaintiff apparently praised her ex-boss and workplace in this deleted content. Defendants stated that they knew of the messages because the defendant dentist’s wife was friends with plaintiff on Facebook:

Concerning Facebook photographs, Plaintiff admitted that she posted to Facebook pictures taken while on a cruise with Dr. Atwood and his family. She testified, however, that she removed those photos sometime after she retained counsel because she randomly deletes albums from Facebook “on a constant basis.” Despite their deletion, Defendants produced copies of the Facebook photographs during Plaintiff’s deposition. In regard to the at-issue text messages, Plaintiff testified that she randomly deleted text messages while she was employed at Urgent Dental. Those text messages allegedly included some texts to a person named Ryan in which Plaintiff complained about Dr. Atwood. Plaintiff stated that she tried to get those text messages from her carrier, but was unable to do so. Additionally, Plaintiff stated that she replaced her phone in October 2011. 

Plaintiff’s attorney argued that the Facebook posts lacked relevance due to the fact that plaintiff had openly admitted she enjoyed her former workplace and ex-boss. Counsel also argued that Plaintiff quit her job solely based on the one incident of alleged sexual misconduct and that, as a “22-year-old girl”, plaintiff would not have known to preserve the posts in question.

Defendants sought sanctions for the deleted data. Regarding the Facebook posts, the court held that the posts were relevant and that sanctions were appropriate:

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. [Aaron] Atwood, after she contemplated the instant litigation, for an innocent reason.

Because Plaintiff presented copies of deleted Facebook photos, the court did not concern itself with spoliation claims. The text messages, however, were a different matter:

Plaintiff has admitted to randomly deleting text messages while employed at Urgent Dental. Specifically, there appear to be some text messages between Plaintiff and a person named Ryan in which she complained about Dr. Atwood. These text messages would be relevant to the case and no longer exist. Thus, the Court can conclude that they have been destroyed.

The judge found that, because the spoliation had not significantly delayed the proceedings, dismissal of the case would be too harsh a penalty, but held that awarding defendants an adverse interference instruction at trial was an appropriate sanction. 

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