Examining an opposing party’s social media page for damaging pictures or posts has become common practice in many trials, particularly civil trials or those where credibility is a key issue. A Facebook or MySpace picture that contradicts the image a party is attempting to portray can be helpful in swaying a jury. Although using evidence gleaned from social media is a relatively new introduction to litigation strategies, at least one court is making it very clear that destroying or hiding discoverable evidence is illegal spoliation– regardless of whether the relevant evidence is a murder weapon or a Facebook photo album.

Nearly a year after winning Virginia’s largest known wrongful death award for his client, lawyer Matthew Murray has lost over $500,000 and his legal career. Murray’s client, Isaiah Lester, was awarded over $10 million by a jury in Charlottesville, Virginia, after his wife, Jessica, was killed by a reckless driver. The defendant, driving a truck carrying 36,000 pounds of cement, lost control of his vehicle after going too fast around a curve and crushed Jessica’s Honda as she drove to work. After the jury returned their unprecedented verdict, Murray said his client’s legal victory “speaks to the value of life . . .  [t]he award affirms the value of the loss of this community of Jessica Lester.” However, just ten months later, the judge in the case not only reduced the jury award by nearly half, but also levied over $720,000 in sanctions against both Murray and his client.

Noting what he called the “extensive pattern of deceptive and obstructionist conduct of Murray and Lester,” the judge found that the pair were responsible for spoliation of evidence from Lester’s Facebook profiles, as well as withholding information from the court about their actions. The judge’s findings show that after receiving a discovery request for Lester’s Facebook account, Murray had a paralegal email Lester with instructions to “clean up” his profile in order to avoid damaging the wrongful death case. Lester’s Facebook page included pictures of himself socializing with friends after his wife’s death while holding a beer can and wearing a t-shirt that said ”I [heart] hot moms.” The judge also found that Murray had strategically deactivated Lester’s Facebook account and withheld his paralegal’s email to Lester despite being ordered to produce it. Murray is required to pay $542,000 of the total $720,000 fine, the amount of which surprised legal experts in Virginia as being one of the largest sanctions in the state’s history. Murray has also resigned from his law firm where he served as managing partner, and an investigation is ongoing by the Virginia State Bar.

Attorney John Patzakis, a writer for the Next Gen eDiscovery Law & Tech Blog, notes that some lawyers incorrectly assume they can treat social media evidence and more traditional forms of evidence differently. He says, “This case reflects a trend we see . . . where a minority of legal and eDiscovery practitioners have not quite placed social media evidence on the same par as other electronic evidence. For instance, I believe it is highly unlikely that Murray would have instructed his client to delete all his emails or wipe his hard drive, but for some reason he differentiated social media evidence.” As the use of evidence from social media sites becomes a more regular occurrence in trials, lawyers must take care not to forget that the rules regarding production of evidence apply even to MySpace, Facebook, or Twitter.

Megan DeLockery

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5 Responses to The High Cost of Social Media: Spoliation of Facebook Evidence Results in Major Sanctions

  1. Meredith Lawrence says:

    It does not seem immediately obvious that cleaning up one’s Facebook page would constitute spoilation. (Murray’s other behavior, such as declining to comply with discovery requests, is celarly out of line.) At first blush, it seems that polishing up the Facebook page is more akin to requiring your client to dress appropriately for court and clean up their language while speaking to the judge. Because this practice does not seem intuitive, I hope that more lawyers are made aware of the dangers of adjusting any of this information when involved in litigation.

  2. Mike Walker says:

    Often there is reason to treat social network discovery differently, however. For example, attorneys should probably be wary of requesting login information through discovery. Apparently, accessing a party’s online communications could violate the Stored Communications Act. There’s an interesting blog post about this issue over at Volokh Conspiracy today. http://volokh.com/2011/12/01/judge-orders-plaintiff-to-give-defendant-her-facebook-password-so-defendant-can-access-plaintiffs-account-as-part-of-discovery/#comments

  3. Edwin Chadwick says:

    I would agree with the above comment made by Andrea that social networks and evidence arising from them is somewhat different from normal evidence in its transitory nature, but I would point out that the lawyer acted here in clear bad faith. I would be curious to find out exactly what the court found more troubling; the initial attempts to ‘clean up’ his client’s Facebook account or his later efforts to conceal the fact that he had done so. I suspect the latter was a bigger factor in the harshness of the punishment.

    Also, I’m not sure exactly how a corporation could control or even if it can control its employee’s Facebook pages, either requiring retention or deletion.

  4. Cal Albritton says:

    As someone who leads a fairly rough and tumble lifestlye, I feel that my Facebook carries a risk of being used as evidence in some impending tort or divorce. Should I institute a data retention policy to avoid spoilation? Should that data retention policy be to never delete anything off my Facebook? Or, would it be appropriate to go to opposite route, to institute a personal policy to delete EVERYTHING a week after it gets posted?

    • Andrea Verney says:

      As a follow-up comment, I wonder how the rule against spoliation might apply to businesses who have Facebook pages. For example, even if a business has a usual data retention policy that takes down wall data/pictures/etc weekly or monthly, must it put a halt to such policy in anticipation of litigation? What should happen if a business does not have a retention policy at all with regard to Facebook?

      I also question the assertion that social media is no different than other evidence sources. Pictures and wall posts on Facebook are more temporary and fluctuating than other evidence; pictures and posts appear and disappear from one’s profile on a daily basis for many of us. I wonder, is it so surprising that an attorney would differentiate this evidence?