Social Media eDiscovery Cannot be Overlooked
An attorney, believing that photographs on his client’s Facebook page could be damaging to a pending wrongful death verdict, advises his client to delete the photos. The outcome? $542,000 in sanctions and a five-year law license suspension.
“We believe that running a social media search of clients, opponents, and witnesses is now part of the minimum level of due diligence expected of a competent litigator…..In our view, it’s just a matter of time before malpractice claims begin to surface based on a failure to use information publicly available on the Internet.” [1]
The Background
It was a horrible automobile accident. Isaiah Lester was driving his wife to work when a cement truck failed to negotiate a curve, toppled over onto Lester’s vehicle, killing his wife. The cement truck driver pleaded guilty to manslaughter. In 2011, a Virginia jury awarded $10 Million to Lester and the parents of Lester’s wife, Jessica.
The Outcome
However, when a judge learned that Lester’s attorney had instructed him to remove troubling photos from his Facebook page, he slashed the verdict and ordered the $542,000 in sanctions against Lester’s attorney, Matthew B. Murray. And now, Murray has agreed to a five-year suspension of his law license. The Virginia State Bar indicated the charges against Murray were based on violations of bar regulations on candor, fairness to opposing parties and counsel, and engaging in “dishonesty, fraud, deceit, or misrepresentation.” [2]
One of the 16 deleted photos included Lester holding a beer and wearing a T-shirt emblazoned with the message “I love hot moms,” with love indicated by a heart.
The Take-Aways
1. It’s there. The ESI which can be found on social media sites is vast, often relevant, and unique. It is frequently overlooked by litigants. It can make your case. Go for it.
2. Counsel your clients. Coach your clients on the pitfalls of recording potentially damaging information on social media sites, AND the danger of “cleaning-up” these sites when litigation can be reasonably anticipated. Courts are confirming that ESI on social media sites can be subject to the same litigation holds as more traditional ESI.
3. Technology is your friend. Powerful and inexpensive social media investigative software can help you crawl millions of social media bits and bytes in a fraction of the time of even the most tech-savvy attorneys. This software performs aggregation, analysis, and data mapping on the discovered information and preserves it in a way that enables authentication if and when you need it.
4. This stuff can go away quickly. Although social media references can be powerful and compelling, individuals that sense they are being investigated may be tempted to try to “take down” or otherwise obliterate this social media evidence, (ie., “erase” their Facebook account) if they suspect you are on to them. Can this deleted ESI be retrieved? Sometimes. But it is always better to preserve it before your opponent suspects you are looking.
1 Andy Radhakant and Matthew Diskin “How Social Media Are Transforming Litigation.” Litigation Magazine, The Journal of the Section of Litigation, American Bar Association. Vol. 39 No. 2 Spring, 2013
2 The Daily Progress, By Bryan McKenzie. 2013. www.dailyprogress.com
