Court Instructs Adverse Inference for Lawyer’s Failure to Advise Preservation of Social Media (Nevada)

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Painter v. Atwood, 2014 WL 1089694 (D. Nev. March 18, 2014).

In this sexual harassment case, the defendants claimed that the plaintiff and her two main witnesses intentionally destroyed text messages and Facebook posts that would contradict the plaintiff’s claim that the defendants fostered a work environment that was sexual in nature. The court found that the plaintiff had spoliated evidence by deleting certain Facebook posts; however, the defendants did not meet their burden of showing culpability for the deletion of the text messages. The plaintiff’s counsel argued that the plaintiff was a 22-year old girl who did not know better than to delete her Facebook posts or texts. The court rejected that argument, stating that “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.” The court ruled that dismissal was too harsh, and thus found an adverse inference instruction to be appropriate.

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