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Think before you delete that Facebook post

Let's say your boss has been sexually harassing you, so you hire a lawyer and sue. It might be a good idea to clean up any positive references to your boss on your Facebook account, because then it might look like his sexual conduct wasn't unwanted, right?

Wrong. And Heather Painter found that out the hard way, to the tune of a sanction in her lawsuit. Painter worked for a dentist who climbed on top of her and held her down. Slam dunk lawsuit, right? Well, the dentist, Aaron Atwood, says he was just tickling her and that the sexual nature of their relationship was "consensual." (When you add in the fact that Painter also babysat for Atwood, the whole thing goes into the seriously icky category.)

But, because Painter had gone through her Facebook page and scrubbed any posts that referenced her job, Atwood claimed that she had posted many positive things about the job, which indicated that it wasn't the horrible place the lawsuit claimed. How did Atwood know about this? Painter was friends with Atwood's wife, until the lawsuit, at which point she un-friended her.

The court did not take kindly to this and sanctioned Painter. What does that mean? Employment Attorney, Eric Meyer explains it this way: "To sanction the plaintiff, the Court ordered the fact finder (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."

So, this was a huge mistake, and even though she argued she was young and didn't know any better, the court didn't buy it.

The Court ruled:

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.

Lesson learned. Your Facebook posts are discoverable in a lawsuit. In fact, Attorney Meyer told me in an email, "The basic, universal, American standard is information likely to lead to the discovery of admissible evidence is discoverable. The Facebook posts fit that category and I have yet to read an opinion in which a court noted that privacy settings trumped the rules of civil procedure."

Now, this brings up two things worth noting. 1. Don't put anything on Facebook that you don't want to face up to in court and 2. If you've lied at any point in your lawsuit, your Facebook posts will probably show that. If winning the lawsuit requires pretending you didn't think and feel certain things earlier, then you probably don't deserve to win the lawsuit.

Now note, in this case, the Judge will instruct the jury to believe that the deleted posts would "undermine" her case. If the posts were able to stand, the jury would be able to make their own determination.

So, when you hear career advice to "clean up your social media accounts" we mean in general and not in preparation for a lawsuit. Once you decide to sue, don't delete.

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