September 14, 2019

The United States District Court Middle District of Florida Fort Myers Division (“Federal District Court”), in its Opinion And Order dated August 26, 2019, denied the defendant hospital’s motion for spoliation sanctions against the plaintiff, who alleged that she was sexually assaulted by the defendant nurse in her room in the defendant hospital multiple times between 10 p.m. on July 16 and 7 a.m. on July 17, 2016.

At the time the defendant hospital received a demand letter on behalf of the plaintiff, its attorneys obtained screenshots from the plaintiff’s Facebook page indicating that the plaintiff was active on Facebook during the early morning hours of July 17, making various posts and comments, including a posting purportedly made at 1:16 a.m. that stated that the plaintiff was “Getting well” and utilized Facebook’s location feature to indicate plaintiff was at the defendant hospital.

During discovery, the defendant hospital requested all of the plaintiff’s postings to social media, including Facebook, referencing the defendant hospital, her hospitalization, any issues with her medical care, or her emotional or mental state. The plaintiff responded that she had a Facebook account until October, 2017 and that it had been “deactivated.” During the plaintiff’s subsequent deposition, she testified she did not recall going on Facebook while at the hospital and that she briefly reactivated her Facebook account in 2018 but she did not recall when.

After failing to obtain information from Facebook, the defendant hospital filed an initial and then an amended motion for spoliation sanctions in December 2018, accusing the plaintiff of willfully destroying her Facebook account to prevent the defendants from using the contents to defend themselves. While the motion was pending, the Federal District Court received a letter purportedly written by an individual named “Bonnie Hayes” that alleged that the plaintiff deleted her social media accounts to destroy evidence and did so under the direction of her attorney. The plaintiff alleged that the author of the letter was a disgruntled former employee of the plaintiff’s attorneys and the information in the letter was “categorically false.” The plaintiff’s attorney was subsequently deposed and testified that he had at least one conversation with plaintiff regarding her obligation to preserve or protect her social media accounts. The plaintiff testified that on at least one occasion someone at the attorney’s law firm told her she could not delete or destroy her social media account or the postings therein.

The Federal District Court stated: “Even if plaintiff’s attorney did improperly accept plaintiff’s [discovery] answers without “independent inquiry” … the Court finds such conduct would constitute negligence rather than recklessness. As negligent conduct does not support a finding of bad faith … the Court declines to impose sanctions on plaintiff’s attorney pursuant to section 1927.” The Federal District Court further stated: “Counsel testified that he never instructed plaintiff to review her Facebook account for responsive posts because she told him the account was deactivated and there were no posts responsive to the requests. (Id. p. 52.) He also testified that per customary practice, someone at the firm would have attempted to verify whether the account was active prior to submitting the responses. (Id. pp. 36-37.) The Court finds counsel’s actions are sufficient to constitute “reasonable inquiry” under Rule 26(g) … the Court finds counsel could reasonably rely on plaintiff’s representations that the Facebook account was deactivated and no responsive posts existed. Counsel was not required to certify as to the truthfulness of plaintiff’s responses … As the Court has found plaintiff’s attorney did not improperly certify the discovery responses, the Court denies Lee Memorial’s request to impose sanctions pursuant to Rule 26(g).”

The Federal District Court further stated: “The Court rejects Lee Memorial’s argument that plaintiff’s counsel should be sanctioned under Rule 37. The deposition testimony indicates counsel told plaintiff not to delete the Facebook account, plaintiff deleted the account without informing counsel, and counsel did not learn of this until after Lee Memorial challenged plaintiff’s April 23rd responses. The testimony also indicates (1) counsel unsuccessfully attempted to access the account upon receiving Lee Memorial’s challenge (Fogg Depo. pp. 43-44), and (2) counsel asked plaintiff to check her Facebook for responsive posts but she had already deleted the account (Plaintiff Depo. pp. 46, 49).”

With regard to the plaintiff’s individual actions, the Federal District Court stated: “the Court finds spoliation sanctions are inappropriate because Lee Memorial has failed to demonstrate plaintiff acted in bad faith in deleting her Facebook account [Plaintiff testified that she deleted the account rather than leaving it deactivated because she was scared “somehow some way someone could still get in it and find me and hurt me as I was threatened;” she also testified that during the alleged sexual assault, Hechavarria stated he knew her address and threatened to “come get” her and that despite her attempts to set privacy settings on her account she was contacted through Facebook by the media after Hechavarria was arrested].” The Federal District Court concluded: “the Court finds plaintiff’s explanation is credible given the circumstances of this case, and the Court cannot say she acted in bad faith by deleting the account.” However, the Federal District Court also stated: “While the Court will not impose a sanction on plaintiff, it feels obligated to rebuke her discovery efforts in this case. The record indicates plaintiff had already deleted her Facebook account when she responded to Lee Memorial that the account was only deactivated. Furthermore, plaintiff’s deposition testimony indicates she did not attempt to reactivate and look through her account for responsive posts, believing none existed because she could “absolutely remember everything [she] did not post.” (Plaintiff Depo. p. 85.) However, this has proven to be untrue, and unfortunately resulted in a waste of time and litigation.”

Donia Goines v. Lee Memorial Health System and Jeovanni Hechavarria, Case No: 2:17-cv-656-FtM-29NPM.

If you or a loved one have suffered serious harm as a result of a sexual assault in a hospital in the United States, you should promptly find a medical malpractice attorney in your state who may investigate your hospital sexual assault claim for you and represent you or your loved one in a hospital sexual assault case, if appropriate.

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