Deleting that Facebook Page Could Cost You

by Annette Burns on August 5, 2013

More than two years ago, a very large sanction was issued by a Virginia court against an attorney and his client. The sanction was for destruction of social media evidence (specifically, a Facebook page) during litigation. This wasn’t done in a family law case, but that situation could easily happen to a family law attorney. It’s worth examining again.

The case is Lester v. Allied Concrete.

A Virginia attorney ended up with a half-million dollar fine for telling his client to take photos off his Facebook page, because the photos were unflattering to the client’s claim for damages for his wife’s death. After this spoliation of evidence was discovered, fully litigated in court, and sanctioned, the attorney also apparently quit practicing law and gave up what was a well-respected and lucrative career.

The sanction against the attorney was for $542,000. The client was ordered to pay an additional $180,000 for following the attorney’s instructions, and a significant part of the damages awarded to him by the jury was cancelled. As of early 2013, the Defendant Allied Concrete was still trying to reduce the damages awarded against it based on the Facebook fraud.

One can argue that this conduct, which occurred sometime in 2009, happened before some people actually knew Facebook and other social media was relevant and easily discoverable. It took a long time for attorneys, and perhaps this particular attorney in Virginia, to take Facebook seriously.

According to court documents, Attorney told Client to remove photos, because one in particular showed Client, after his wife’s death by auto accident, wearing a tee shirt that said “I Love Hot Moms” while holding a beer. Attorney determined that the Facebook page had to be “cleaned up” with the fear that a photo like that would appear at trial to controvert the loss of consortium claim. An email from Paralegal to Client actually said “We do not want blow ups of other pics at trial, so please, please clean up your facebook and myspace! . . . and there are other pics that should be deleted.” It’s difficult to imagine a more direct instruction to commit spoliation of evidence. At least a dozen photos were then deleted by Client, and he later de-activated the entire Facebook account. His discovery responses to the Defendant in the case later stated that he had no Facebook account. Client had apparently de-activated the Facebook account in the proper way, meaning the account was not entirely deleted by Facebook. Client later re-activated the account, which was then made available to the Defendants. Client also apparently lied in a deposition, stating that he had never de-activated the account.

Perhaps the saddest, or most telling, part of the overall deception was this email from Attorney to Client: “Don’t worry about sanctions. If we get sanctioned, after the trial, you’ll have plenty of money to pay it.” This email, finally turned over to Defendants after stonewalling by Attorney and Client, was read to the jury. Despite hearing this email, the jury awarded Client more than $10M, which was later reduced by half on remittitur.

In a particularly ironic turn, a juror’s post-trial letter to the judge   (gardiner_to_hogshire_letter) (objecting to the way the jury was portrayed in the remittitur ruling) revealed that the jury felt any evidence relating to the Facebook pages to be completely irrelevant to damages.

Does this case show that some attorneys simply don’t take social media seriously and figure that deleting something so silly as a Facebook page is a minor matter?     Would those same attorneys have felt the same if Client wanted to delete electronic business records, or wipe a business hard drive?

In family cases, social media evidence is arguably relevant in a huge number of cases. References to social media in ALL litigation (not just family) are increasing every year. X1 is a litigation support service that specializes in social media evidence and discovery, and its website lists references to social media in all types of reported court cases for 2011 and the first half of 2012. (One wonders if by late 2012 the references simply became too numerous to track.)

The Lester case out of Virginia should be required reading for litigation attorneys, to underline the importance of social media when it comes to spoliation of evidence. A simple Facebook page or Tweet could be just as important as a hard drive of financial information when it comes to an attorney’s ethical duties regarding spoliation or preservation of potential evidence.

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