Law Tips: Social Media & Legal Ethics, Part 3

“If relevant social media information is destroyed, it may result in a spoliation motion and even sanctions for the destruction of evidence.” …A warning from John David Hoover, Hoover Hull LLP, during his Social Media & Legal Ethics CLE presentation. His remarks include some timely reminders with regard to potential discovery abuses that I am pleased to share with you in this week’s Law Tips.

Discovery Abuses
Because social media information may be discoverable, it is important that relevant social media be preserved in the context of litigation.  Indiana Rule of Professional Conduct 3.4 prohibits a lawyer from unlawfully altering or destroying evidence or assisting others in doing so.

In a recent Virginia wrongful death case, Lester v. Allied Concrete Co., Case No. CL.08-150, CL09-223 (Va. Circuit Court of the City of Charlottesville Sept. 1, 2011), a party and his lawyers were sanctioned more than $700,000 for intentionally destroying a Facebook page.

During discovery, the opposing party requested the contents of the plaintiffs Facebook page and account after obtaining a photo from the plaintiffs Facebook page showing the plaintiff wearing an “I ♥ hot moms” T-shirt. After the defendant’s lawyer questioned plaintiff about the photo during a deposition, and subsequently served formal discovery requests for the Facebook information, the plaintiff’s lawyer instructed his client to “clean up” his Facebook account, because “we don’t want blowups of this stuff at trial.” Instead of producing the requested Facebook information in response to discovery, plaintiff’s attorney created a scheme to take down or deactivate his client’s Facebook page and responded to the discovery stating that his client had no Facebook page as of the date the response was signed. His account later reactivated and its contents were produced to defendant. However, prior to production, the plaintiff deleted 16 photos from the page in accordance with the instructions from his attorney to “clean up” the account. Although the jury ultimately found in favor of plaintiffs at trial, in a post-trial motion for sanctions, the court imposed monetary sanctions of $522,000 against the lawyer for instructing his client to destroy the Facebook page, and $180,000 against the client for obeying his instructions. In addition to the massive monetary sanctions for spoliation, the attorney’s conduct was referred to the Virginia bar.

The Lester case is an extreme example of how social media and discovery abuses intersect. To avoid an outcome like that case, it is important to instruct clients in writing, once an engagement is accepted, to not remove anything from social media sites. Your “litigation hold” letter should expressly address social media to ensure that relevant discoverable information is preserved. If information is taken down from social media sites, be sure that the information is preserved and disclosed if properly requested during discovery.

Thanks again to John for his advice on being wary of discovery abuses in the social media area. He covers additional current topics, such as, Scope of Discovery and Statements Against the Tribunal while participating in ICLEF’s “Business Litigation” seminar.

You can also take advantage of the opportunity for John’s full presentation in the  seminar. To view the upcoming Video Replays, the Online/On Demand Video or purchase the e-Publication of “Business Litigation“ – Click Here


About our Law Tips faculty member:
John David Hoover is a founding partner with Hoover Hull LLP. He practices in the areas of commercial litigation, professional liability (including medical and legal malpractice defense), professional peer review, officer and director defense, campaign and election law, art litigation, and counseling buyers and sellers on the purchase and sale of fine art items.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. Also, look for blog updates on Facebook and Twitter.  Your comments are welcome as Nancy continues to sift through the treasure trove of knowledge of our expert faculty to share with you on Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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