by Elijah Yip
Have you ever been tempted to delete a social media post that exposes you or your company to liability? A post that seemed like a harmless joke but now could turn into evidence in a wrongful termination lawsuit? Or a photo that could cast you in an unflattering light? If it ever crossed your mind that no one will notice if you simply press the “delete” button, here’s a case illustrating why succumbing to that temptation doesn’t end well. 
Sorry—that isn’t me
Brannon Crowe sued his employer, Marquette Transportation Company, for injuries he sustained in an accident that allegedly occurred at work. Marquette discovered a Facebook message Crowe had allegedly sent to a coworker in which he admitted injuring himself while fishing. That prompted Marquette’s lawyers to serve Crowe with a discovery request for a complete copy of his Facebook history. (Discovery is the pretrial exchange of evidence relevant to a lawsuit.)
Crowe’s response to the request was that he didn’t “presently” have a Facebook account. When confronted at his deposition with a printout of a Facebook message that appeared to have been sent from an account with the username “Brannon CroWe,” he claimed that he hadn’t had a Facebook account since around October 2014 and his account had been hacked. To substantiate his hacking claim, he pointed out rather unconvincingly that unlike the username on the printout, there’s no capital “W” in his name.
Crowe wasn’t entirely forthcoming. Although he was technically correct that he didn’t have an active Facebook account when he responded to the discovery request in December 2014, the truth was that he deactivated his Facebook account four days after receiving the request for the evidence in October 2014. To make things worse for him, data in a deactivated Facebook account isn’t deleted, and the deactivated account can be reactivated at any time.
Needless to say, the court was displeased with Crowe’s attempts to evade discovery. The court ordered him to provide Marquette with his entire Facebook account history and the login information for all of his Facebook accounts. Crowe v. Marquette Transportation Company, Gulf-Inland, LLC, 2015 WL 254633 (E.D. La., Jan. 20, 2015).
Bottom line
Although this case involved an employee who tried to hide unhelpful social media information, its lessons apply equally to employers. Deactivating a social media account doesn’t necessarily shield information in the account from discovery because the information is probably still available. And deleting a social media account doesn’t always mean the information in the account is gone forever.
It’s not unusual for social media providers to store deleted user data in backup archives before permanently deleting the information. And even if social media information is truly deleted, that can be problematic in itself. A person (or a company) has a duty to preserve evidence that’s relevant to reasonably anticipated litigation. Violating the duty to preserve evidence can lead to unpleasant consequences, including court sanctions.
Learn from Crowe’s example. The next time you’re tempted to dispose of an incriminating Facebook post, deactivate the temptation, not your Facebook account.
Elijah Yip is a partner with Cades Schutte LLP in Honolulu and chair of its digital media and Internet law practice group. He is a frequent contributor to Hawaii Employment Law Letter and author of the blog LegalTXTS blog. He may be contacted at eyip@cades.com.