Attorneys Beware – Attempting to Erase the Past on Facebook Can Result in Costly Sanctions

Attorneys Beware – Attempting to Erase the Past on Facebook Can Result in Costly Sanctions

To delete or not to delete – that is the question Facebook users and their counsel must carefully contemplate when responding to eDiscovery requests. Making the wrong decision can be costly for users and their counsel as was the case in Lester v. Allied Concrete Co. In Lester, when served with a demand for the contents of his Facebook page, the actions of plaintiff and his attorney resulted in the Virginia Circuit Court of the City of Charlottesville imposing substantial monetary sanctions against both the plaintiff and his attorney.

 

In Lester, Isaiah Lester sued Allied Concrete Company and William Donald Sprouse seeking monetary damages for negligence and wrongful death. Throughout the lawsuit, continuous disputes arose over discovery related issues. Specifically, defendants sought the production of screen print copies of Lester’s Facebook account, including all of his pictures, message board, status updates, and messages sent or received. Defendants attached to their request a photo of Lester holding a beer can while wearing a t-shirt with the logo “I ♥ hot moms,” which Lester’s counsel

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presumed was taken from his Facebook account.

 

After receiving the demand, Lester’s counsel instructed his paralegal to advise Lester to “clean up” his Facebook because “we don’t want blowups of this stuff at trial,” and the paralegal sent two emails to Lester instructing him accordingly. Lester’s attorney then formulated the following scheme: Because the request sought production of screen print copies “on the day this request is signed,” Lester’s attorney rationalized that if Lester deactivated the account prior to signing the responses, then there would be nothing to produce.

 

Lester deactivated his account, a fact he later denied at his deposition and during trial, despite evidence that clearly demonstrated that he knew those statements to be false. Lester provided his responses one day after the deactivation, answering the request “I do not have a Facebook page on the date this is signed, April 15, 2009.”

 

Defendants then filed a Motion to Compel Discovery. After consulting with another attorney, Plaintiff’s counsel had his paralegal instruct Lester to reactivate his account. Lester did so, but following his earlier instructions from his counsel, he deleted sixteen photos while his counsel’s paralegal was printing the screens. Both his attorney and paralegal claim that they were unaware that the photos were deleted at the time they prepared their amended response.

 

Defendants filed a Motion for Sanctions for Plaintiff’s Spoliation of Evidence. At the November 22, 2010 hearing, the defendants’ expert, using Facebook’s IP logs provided by Lester’s attorney, testified that spoliation transpired and that Lester had deleted the photos. Lester, through his counsel, admitted that there had been spoliation. On December 6, 2010, the Court found that there had been spoliation of evidence by Lester and ordered that an adverse inference be given at trial regarding the spoliation and that Lester and his attorney would remain subject to further findings of fact and possible sanctions at a future date.

 

After the December 7-9, 2010 trial, the jury awarded more than $8 million dollars to Lester. Both parties filed post trial motions, including defendants’ Motions for Monetary Sanctions against plaintiff and his counsel addressing, in part, the failure of plaintiff’s counsel to respond to the Subpoena Duces Tecum previously served on his paralegal requesting any and all emails between the paralegal and Lester for a defined period of time

 

By Order dated February 4, 2011, the Court compelled that the entry of the jury verdict be deferred and the plaintiff’s counsel produce all emails for an in camera inspection and all previously subpoenaed documents that plaintiff previously claimed to be privileged.

 

Plaintiff’s counsel produced the initial Privilege Log and the Enhanced Privilege Log (ordered by the Court after finding the first log was inadequate) – yet both logs failed to include an email the paralegal sent to Lester. The Court found that Lester’s counsel intentionally omitted the email and then tried to blame the omission on the mistake of his paralegal.

 

On September 1, 2011, the Court granted defendants’ Motion for Monetary Sanctions against both Lester and his counsel. The Court found that Lester engaged in the spoliation of evidence citing the fact that he deactivated his account and claimed he didn’t have an account in his original “misleading response,” deleted the sixteen photos, and lied at his deposition and at trial, claiming that he never deactivated his page or deleted the photos.

 

The Court further found that Lester’s counsel violated several Virginia rules by obstructing the production of documents by drafting a deceptive response and instructing his client to deactivate his Facebook account; by signing the responses containing the statement that Lester didn’t have a Facebook as of April 15, 2009; and by failing to include an email on multiple privilege logs, by failing to produce the email for an in camera review, and by falsely reporting that the omission was a member of his support staff’s when it was really his own.

 

The Court sanctioned both individuals to pay reasonable expenses, including attorney fees incurred by defendant, totaling $722,000.00 of which Lester is responsible for the sum of $180,000.00 and his counsel is responsible for the sum of $542,000.00. The Court referred ethics-based allegations against Lester’s counsel to the Virginia State Bar and the matters relating to Lester’s perjury to the Commonwealth’s Attorney for the City of Charlottesville.

 

Lester exemplifies that, contrary to popular belief, deleting information from a Facebook account does not protect the user and instead the deletion may cost users and their attorneys more in the end! Before hitting the delete button, Facebook users and their counsel should carefully consider the potential implications of their actions when responding to a demand for discovery.

Melissa L. DiPasquale, an attorney at Durkin & Durkin, LLP, practices in the areas of commercial litigation, transactional law, and collections and foreclosure law. Ms. DiPasquale is a graduate of Seton Hall University School of Law, 2008, and The College of New Jersey, BS – magna cum laude, 2005. Ms. DiPasquale is licensed to practice law in the State of New Jersey, the State of New York, and the District Court for the District of New Jersey. Ms. DiPasquale is a member of the Essex County Bar Association – Young Lawyers Section and serves as the Essex County Co-Coordinator for the 2012 Vincent J. Apruzzese High School Mock Trial Competition (New Jersey State Bar Foundation).

Comments (4):

  1. This case makes me wonder what Lester’s attorneys were thinking when they went to such great lengths to hide his Facebook posts. They clearly must have thought that the page contained some probative information, or else they would not have directed Lester to delete it. Is there some longstanding precedent of attorneys deleting information from a Facebook account without facing negative repercussions? Or were they really just trying to get away with something?

  2. In this day in age I find it hard to believe that an attorney would advise their client to “clean up” their facebook account after discovery demands have been made. This is clearly a case where an attorney did not associate new forms of social media with more customary forms of discovery. This goes to show that courts are now placing as much importance on social media as hey have in the past with other traditional forms of discovery. Although courts are beginning to place an importance on these new forms of media, many attorneys continue to overlook the social media aspect of discovery when making their demands. This case is an example of new precedent demonstrating the courts position on social media when a demand is made. Lester established that social media is highly relevant as evidence in current court cases, and it is important that attorneys seek out this new evidence and include its investigation in their standard processes and discovery demands. Additionally, although not an issue in Lester, it appears imminent that an attorney will be found to have breached his professional duty if he fails to demand such media in future cases, resulting in considerable sanctions.

  3. Spoliation of evidence occurs when evidence pertinent to an action is destroyed, thereby interfering with the proper administration and disposition of the action. I will have to read the Lester opinion as a whole to determine the pertinence of a picture of “Lester holding a beer can while wearing a t-shirt with the logo ‘I ♥ hot moms’” in a suit for monetary damages for negligence and wrongful death. No doubt, the court found the photo and other information on Lester’s facebook page to be probative given the sanctions imposed. Still, I cannot help but think of an adversary’s demand for pictures and information posted on a client’s private facebook page as a sort of fishing expedition. For example, particularly in family actions, I have time and again seen the introduction of facebook pictures by one party of the other in situations or committing acts which truly have no bearing on their parenting capabilities. Similarly, in an employment discrimination case, I have seen a party work to make use of the fact that the opposing party is the friend of a friend of an alleged wrongdoer on facebook. As the courts now place additional importance on information gained through forms of social media, I hope the general probative value of the evidence presented is not inappropriately degraded or heightened simply as a result of the source from which it comes. The court must consider, for better or worse, the casualness of social media. Though society may think otherwise, the court should know better than to think facebook is the be all and end all when it comes to evidence of a person’s demeanor, skills, actions, and so on, and only allow the introduction of evidence which is truly pertinent and permit sanctions for spoliation of same.

  4. This is another example of how Facebook is intertwined with nearly every aspect of our lives and various areas of the law. Earlier this year, a teacher in Union, New Jersey got caught making anti-gay remarks on her Facebook profile, which represents an interesting case in the workplace speech context in Employment Law. I cannot help but wonder if there were other prior suspicions of such teacher’s views or remarks that implicated her in litigation, then would her lawyer too have encouraged her to deactivate her Facebook profile? Perhaps this is some type of “damage control” from the attorney’s perspective but the ethical implications are clearly risky and devastating to their client’s case, especially a plaintiff who is blindly relying on their attorney’s advice every step of the way. It’s almost a catch-22 in the sense that pulling the plug on the Facebook account before any unflattering information is uncovered can result in severe sanctions, while letting the profile stand can result in a situation like the teacher from Union. While requesting production of information from one’s Facebook profile may be just a fishing expedition, if the client insists on maintaining a Facebook profile then he/she has succumb to the reality that the social-networking site, much like e-mail, is a part of his/her daily routine, and counsel should be aware that this also means that Facebook can make its way into the courtroom.

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