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Lester v. Allied Concrete [2014] “We do not want blow ups of other pics at trial,” the assistant’s email to Lester said, “so please, please clean up your Facebook and MySpace!”

Spoliation Sanctions: Social Media Clean Up

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Lester v. Allied Concrete [2014]

In this rare instance, Virginia State fined an attorney $522,000 in Spoliation sanctions for advising his client to “clean up” his Facebook account during litigation proceedings; deeming it to be the largest eDiscovery spoliation sanction to that point. A Virginia state judge found lawyer Matthew Murray guilty of instructing his client to remove photos from his Facebook profile, and for his client to pay and additional $180,000 for compliance with this request.

Wrongful Death Case turned to Wrongful Deletion of Evidence

Whilst the plaintiff was driving his wife to work, the defendant’s truck lost control and so the plaintiff sued for wrongful death of his spouse and for personal injuries, including mental anguish. To his extreme detriment the plaintiff’s legal representation did not equate social media evidence with traditional forms of evidence and advised his client to remove several photos from his Facebook account, including an image of the allegedly distraught widower holding a beer and wearing a tshirt emblazoned with “I [heart] hot moms”.

Murray asked his client to “clean up” his Facebook page, stating “[w]e don’t want any blow-ups of this stuff at trial”. The following day advised he delete the account in an attempt to claim he had no Facebook page on the date that the Discovery request was signed. Upon being served with a motion to compel production of content the page was reactivated for the purpose of printing content responsive to requests, but 16 photos were also deleted.

Small Acts resulted in Big Sanctions

“Whereas, the court, having reviewed the evidence and arguments of counsel and carefully considered the extensive pattern of deceptive and obstructionist conduct of Murray and Lester resulting in the sanction award, finds that most of the substantial fees and costs expended by Defendants were necessary and appropriate to address and defend against such conduct…”

Social Media Evidence v. Traditional Forms of Evidence – What’s the difference?

This case outlines the importance and advances of best practices in technology and discovery proceedings; particularly when using social media and the need to preserve content so as to not get entangled in a spoliation issue. The Virginia court evidently saw no difference between Facebook postings and other “traditional” electronically stored information.

If Murray had initiated proper legal hold of his client’s social media content as potential evidence and not carried out these reckless acts of spoliation, this would not have made for a more upsetting wrongful death case, adverse inference jury instruction, excessive fines – and his own legal career.

Research shows that a growing majority of legal practitioners are placing social media evidence on the same par as other forms of electronic evidence – it is now in the interest of best practice, competence and due diligence to do so.

Statistics show that over 5,500 cases in the past year specifically referenced social media (according to a Westlaw data search), indicating a three-fold increase from 2013.

The trial court in this instance found that the plaintiff  had “intentionally and improperly deleted certain photographs from his Facebook account”. Will others learn from these mistakes and ensure secure and consistent preservation and reproduction of social media content as evidence?
With Bar Associations steadily publishing Opinions regarding a duty to preserve social media content, it seems as though lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.” (New Hampshire Bar Association, Opinion 2012-13/05).

To dismiss these protocols and practices are only resulting in courts taking stronger stances on spoliation of evidence and ultimately making examples of those who chose to ignore these standards. Preserve, produce or perish!

The Role of WebPreserver

WebPreserver is an innovative eDiscovery tool, essential for the effective and easy creation of evidence from ESI and preservation of digital content for litigation purposes, aimed specifically at legal professionals, litigation support and law enforcement officials.

Snapshots of social media content are created and authenticated with the efficient and simple use of a Plug-in and single-click capture in line with Federal Rules of Evidence and other compliance standards, creating reliable evidence for litigation proceedings.

Snapshots are saved in both PDF and WARC formats and authenticated with the advanced technology of both an e-signature (in compliance with the E-Sign Act) and an automated time stamp giving integrity to content taken from social media. WebPreserver provides the additional resources of an online sharing platform where litigation support and legal professionals can share personal files of evidence with colleagues and clients, download them locally, and organise with keyword tagging.

The growing importance of social media content and ESI as evidence in the courtroom means that firms and law enforcement authorities should have a simplified, cost and time effective records management structure in place to ensure fair trials and outcomes – WebPreserver is the essential eDiscovery tool that provides such a service

The information and materials on this blog are provided for general and informative purposes only and are not intended to be construed as legal advice. Content on this blog is not intended to substitute the advice of a licensed attorney, as laws are subject to change and vary with time, from jurisdiction to jurisdiction. Content on this blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date.

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