Article Series: Advising Clients Regarding Their Social Media Presence
Part II: Existing Social Media
Given some recent case law, you should advise your client to be (1) aware of the nature of future postings, but (2) not to delete / modify their pages in order to help their case least the other side cry “spoliation.” A recent case from Virginia is illustrates the point.
A court in Virginia levied a $722,000 sanction award against Isaiah Lester, the widower of a woman killed in a car accident and the widower’s lawyer, Matt Murray. In 2008, truck driver pleaded guilty to charges of involuntary manslaughter for the accidental death of 25-year-old Jessica Lester. Jessica’s parents and her widower, Isaiah Lester, won a massive wrongful death suit in 2010 against Sprouse and his employer at the time of the accident, Allied Concrete Company. A Virginia jury awarded them a massive $10.6 million.
On October 21 (nearly a year later), Judge Edward Hogshire signed a “final order” cutting the jury verdict in half in Lester v. Allied Concrete Company and William Donald Sprouse, and penalizing Lester and his attorney, Murray. The Order reads:
Whereas, the court, having reviewed the evidence and arguments of counsel and carefully considered the extensive pattern of deceptive and obstructionist conduct of Murray and Lester resulting in the sanction award, finds that most of the substantial fees and costs expended by Defendants were necessary and appropriate to address and defend against such conduct…
The attorney Murray was sanctioned for $542,000, while the client, Lester was sanctioned for $180,000.
According to a September 1, 2011, Order from Judge Hogshire, the spoliation began in March 25, 2009, when Murray received a discovery request for the contents of Lester’s Facebook account. Attached was a photo of Lester wearing a “I [heart] hot moms” t-shirt, and holding a beer can with other young adults..
According to the deposition testimony Marlina Smith, Muarry’s paralegal, the attorney instructed her to tell Lester to “clean up” his Facebook page because, “we don’t want blowups of this stuff at trial.” Smith emailed that message to Lester the next day. On March 26, 2009, according to the Court’s Order, Murray came up with a scheme to take down or deactivate Lester’s Facebook account so that he could respond that he had no Facebook page on the date the discovery request was signed. When defense attorneys filed a Motion to Compel, Murray instructed Lester to reactivate the account. But in a December 16, 2009, deposition, Lester denied deactivating the account. Murray is also accused of withholding the email from Smith instructing Lester to clean up his Facebook page when he was ordered to produce it shortly before the trial began. Murray falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.
In summary, whether you are an attorney advising a client with claims that may be affected by social media, or a client or potential litigant actively using social media, it behooves you to be mindful that social media is the first place opposing counsel is going to look to in responding to a claim. A careful pre-suit/pre-engagement social media review of existing social media postings, and frank conversations with client regarding future social media postings are, accordingly, an integral part of your due diligence.