Social media has become a vital way to communicate with friends, family and colleagues. Status updates, tweets and texts have rapidly replaced letters and telephone calls as the preferred methods of communication for a large segment of the population. Indeed, recent figures indicate that one out of seven people in the world belongs to a social media site, such as Facebook, LinkedIn or Twitter. It was inevitable, then, that this pervasive force would wend its way into civil litigation. Just since the beginning of 2010, social media evidence has been addressed in more than 600 published decisions. Some recent cases of interest include Tompkins v. Detroit Metropolitan Airport, 2012 WL 179320 (E.D. Mich. Jan. 18, 2012) (court found that defendant must make a sufficient predicate showing that the private Facebook material sought in discovery is reasonably calculated to lead to the discovery of admissible evidence); Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011) (court granted a defense request for an in-camera review of plaintiff’s private Facebook page to determine whether or not the content was responsive to the defendant’s discovery requests); and State of Connecticut v. Eleck, 23 A.3d 818 (Conn. App. 2011) (court did not allow Facebook postings to be used to impeach prosecution witness, stating that the postings had not been properly authenticated as being posted by witness, even though they originated from witness’s Facebook account).
Accompanying social media’s increased presence in cases and in the courtroom are rules and sanctions related to spoliation of social media evidence. Thus far, spoliation sanctions in this realm have been rare. A recent Virginia state court decision, however, demonstrates the ramifications of poor decisions by both counsel and parties when dealing with run-of-the-mill discovery requests that have a social media element.
Lester v. Allied Concrete Co., No. CL 08-150 (Va. Cir. Ct. Oct 21, 2011), was a wrongful death case stemming from a tragic set of circumstances. In 2008, truck driver William Donald Sprouse pleaded guilty to charges of involuntary manslaughter for the accidental death of Jessica Lester. According to news reports, Sprouse’s “truck rounded a corner on two wheels, flipped and rolled over onto Lester’s car, a crushing 60,000 pounds landing where Jessica sat.” Jessica Lester’s husband of two years and her parents subsequently sued Allied (Sprouse’s employer) and Sprouse, eventually winning a jury verdict of over $10 million, making it reportedly one of the largest wrongful death verdicts in the state’s history.
That verdict, however, was short-lived. The court’s post-verdict order in the case addressed a plethora of complaints from defense counsel regarding Lester’s conduct and the conduct of his attorney, Michael Murray, both before and during trial. Among other things, the court found that Lester and his counsel intentionally spoliated evidence found on Lester’s Facebook page. Even though all material on the page was ultimately recovered and produced and the court found that defendants suffered no prejudice, the court found that sanctions were warranted.
During the course of discovery, Allied’s counsel learned that Lester had a photo on his Facebook page of himself in an “I [heart] hot moms” t-shirt, holding a beer can, and standing with other young adults. Sensing that this activity was inconsistent with his self-portrayal as a grieving widower, Allied served discovery requests along with a copy of the photo, asking for screenshots of Lester’s Facebook page “as of the date the request was signed.”
Upon receiving this request, Murray instructed his assistant to contact Lester and tell him to “clean up” his Facebook page because “we don’t want blowups of this stuff at trial.” His assistant e-mailed Lester the next day. Murray then instructed his client to deactivate the page entirely, so that he could represent in his response to the discovery requests that he had “no page as of the date of the response.” After further wrangling between the parties, the page was re-activated so that screenshots could be taken, but Lester then “cleaned up” the page consistent with the prior instructions, deleting 16 photographs and other evidence. Lester later denied during his deposition that he ever deactivated his account.
Suspicious about these activities and Lester’s testimony, defense counsel subpoenaed from Murray all e-mails between Murray and Lester that related to the Facebook account. Not surprisingly, Murray and Lester resisted, claiming work product and attorney-client privilege. When the court ordered Murray to produce a privilege log, he did so, but he withheld the e-mail from his assistant instructing Lester to clean up his Facebook page. Murray subsequently produced the e-mail to the judge, claiming the omission was an oversight by a paralegal.
The court found this behavior to be aberrant and that due to “the extensive pattern of deceptive and obstructionist conduct of Murray and Lester … most of the substantial fees and costs expended by Defendants were necessary and appropriate to address and defend against such conduct.” The court also found specifically that Lester intentionally spoliated evidence.
Ultimately, the wrongful death verdict was slashed to $4.45 million for reasons ostensibly unrelated to Lester’s and Murray’s conduct. Moreover, the court sanctioned Murray in the amount of $542,000, and Lester in the amount of $180,000, citing as primary reasons their actions relating to Lester’s Facebook page. Murray’s conduct was referred to the Virginia State Bar. Since the court’s October 2011 ruling, Murray reportedly has left his position at his law firm and quit the practice of law.
While this case obviously involves extreme behavior on the part of counsel, it gives rise to some important tips to keep in mind when dealing with any case involving social media:
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While Virginia may have been one of the first states to delve into the social media sanctions waters, it certainly will not be the last. Lester teaches us that, despite the novel format, the rules of civil procedure still apply to e-discovery. Claims professionals and counsel should be alert for social media issues in their cases and should question insureds (and claimants) about their social media practices in order to assure that all relevant information is captured for discovery. The Lester case also demonstrates the importance of addressing these issues early – if you know information exists that may be helpful (or damning) to your case, it is best to assess any potential social media pitfalls as soon as practicable, not to wait until a discovery request with a potentially damaging photograph appears in your inbox.
Jana Landon is Of Counsel at the law firm of Stradley Ronon Stevens & Young, LLP. She is Co-Chair of the firm’s E-Discovery Task Force and Vice-Chair of Social Media for the Defense Research Institute. You can connect with her on LinkedIn at http://www.linkedin.com/in/janalandon or follow her on Twitter at @LandonJana.