Spoliation is a Serious Issue

Professor Garfield brought up Spoliation of Facebook evidence in an earlier post, and that got me thinking.

There’s intentional spoliation – where a party makes the decision to destroy evidence to avoid responding to a discovery request, or to ensure the evidence is never found – but there’s also unintentional spoliation.

The link above directs you to an Above the Law blog post – describing how the Plaintiff in a wrongful death action lost, after trial, big time, when it became clear he deleted his Facebook page intentionally, so that he could “claim” he didn’t have one. The case has pretty awful details – a young 25 year-old bride killed in a motor vehicle accident, and her husband had some photos of himself partying. His lawyers wanted the pictures down – he sure didn’t look like he was in mourning wearing a “I Love Hot Moms!” t-shirt… so that’s intentional spoliation.

But how about when you remove something from your Facebook Page, or your Twitter Feed, or your Linkedin Profile? Lots of college students who started using Facebook circa 2006 might have posted photos that they’d be pretty embarassed about today – and a lot of those students have removed those types of photos as Facebook has grown in scope and popularity. But I think of other types of unintentional spoliation, too – what if someone ELSE posts a photo of you that’s in poor taste, and you “remove tag” – you’ve “destroyed” the link to yourself, but the photo still exists. Is the removal of the link a type of spoliation? Don’t you have the RIGHT to remove the link to yourself if you didn’t post the photo? What if you ask Facebook to remove the photo in its entirety – could that be viewed as potential spoliation in a later suit?

These questions are going to be critical as this issue arises again and again in litigation with social media aspects.

Ambulance Driver Who Updated Facebook Status While Driving Ambulance Survives Summary Judgment Motion

Summary judgment is always tough for an employer to get in disability discrimination suits because the cases tend to be marred with detailed facts – and even this Ambulance Driver, who posted ON FACEBOOK WHILE SHE WAS DRIVING THE AMBULANCE, managed to eek her case past that “genuine issue of material fact” requirement… Brown v. Tri State Ambulance Corp., N.D. W.Va., No. 5:12-CV-5, 2/19/13. She’s arguing that the handful of minor infractions for which she was written up and then terminated was only a pretext for discrimination based on her hip issue. The fact that she refers to “updating facebook while operating a few thousand pounds of steel in a potentially deadly manner” as a “minor infraction” seems problematic to me.

On FMLA? Better Not Post Those Vacation Photos…

Lineberry v. Richards , E.D. Mich., No. 2:11-cv-13752-LPZ-MKM, 02/05/13


An RN was terminated upon her return from FMLA (Family Medical Leave Act) leave for “dishonesty” when photos she posted on Facebook surfaced. She went on leave in the middle of winter, and posted photos of herself and her family vacationing in Mexico during that time. When she went on leave, her employer did know she had the vacation planned – and that she intended to use a wheelchair and was going to “take it easy.” Her physician indicated that the vacation would be more restful than her job, and would not interfere in her recovery. When she admitted to co-workers that she had not, in fact, used a wheelchair during her vacation (and admitted, apparently, that she lied to someone at the employer’s offices about having used a wheelchair), the company terminated her.

It sounded distinctly like the posting of photos during leave upset her co-workers, which prompted them to question her, which prompted her to lie (at least initially, and then admit lying). Maybe she would have been better off not posting at all. After all, it wasn’t the vacation itself that prompted her termination – it sounds like others felt she was “throwing it in their faces.” That Facebook Envy will get you every time…

The Modern Way to Get Back at Your Cheating Spouse

So, many of you may have now heard about AshleyMadison.com whose tagline is “Life is Short, Have an Affair”(I would put a link, but, I’m pretty sure if you really want to go to that site, you don’t need my direction). It’s a website which explicitly exists as a match-making site for those interested in interactions in which at least one of the parties is already in a committed relationship with someone else. What you may not have heard of yet is Cheaterville.com (tagline: Don’t Be The Last to Know), in which wronged parties can post details about ex-paramours, for the purported purpose of “warning” others.

Would a suit for Libel stand against a poster on Cheaterville.com (Well, we know the answer if the allegation is true, but what if it’s not?) – Does it matter whether the individual who has been posted about is male or female (in terms of showing actual damage)? We’ve heard from social science and media over and over that while promiscuous behavior in men makes them “players” (at least a potentially positive attribute), women are more often dubbed “sluts.” Are women more hurt by such accusations online?

“Slut-shaming” is a whole different subject which I promise to post about some time soon – but in the meantime, I’ll be mulling over whether men or women are more hurt by sites like Cheaterville.com, and whether they might serve a legitimate purpose.

Waitress at Applebee’s Fired for Posting Receipt on Social Media Site

A server at Applebee’s received a receipt from a customer (a Pastor, apparently) which left her no tip for a party of 20 people, and read “I give God 10%, why do you get 18?”  Another waitress, trying to make the scene into something more lighthearted,  posted a picture of the receipt on her Facebook page.  She left the signature visible. Once the identity of the diner was being guessed online, the story spread, and the waitress who posted the photo was fired.

I post this, partly to follow up on my recent post about Federal Regulations prohibiting employer’s from blanket bans on employee social media postings.  If the waitress had posted the photo without the signature line visible, would she still have her job? Would she also have had to exclude the name/address of the restaurant?


Employer’s Attempts to Limit Employee Speech – and the NLRB’s Response

This semester, I’m writing about how social media has changed/is changing the face of employment discrimination law suits. In that vein, here’s an article from the NYTimes about how employers have attempted to limit employee speech online – regulations which have clashed with union advocates and federal regulations.


Husband of Prosecutor Defends Wife on Twitter

So, the Husband of the U.S. Prosecutor who charged Aaron Swartz was using Twitter to defend his Wife’s reputation. It didn’t go over well, apparently.   Interesting to note that under the Model Rules, a Prosecutor probably shouldn’t be saying the kind of things that her husband did on his Twitter – does SHE have any responsibility for what HE posts?

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