Some attorneys are still learning the hard way that spoliation of social media evidence is just like the spoliation of any other evidence. Exhibit A– prominent Virginia trial attorney Matthew Murray has been ordered to pay over $522,000 in sanctions for instructing his client to “clean up” his Facebook page. See http://blog.x1discovery.com/2011/11/15/facebook-spoliation-costs-lawyer-522000-ends-his-legal-career/ The relevant orders are linked: facebook spoliation Lester_v_Allied_Concrete_Final_Order
The blog, blog.x1discovery.com reports the facts as follows:
“The court’s findings reflect that Murray told his client to remove several photos from his Facebook account on fears that they would prejudice his wrongful death case brought after his spouses’ fatal automobile accident. One of the photos depicts the allegedly distraught widower holding a beer and wearing a t-shirt emblazoned with ‘I [heart] hot moms.’ Murray instructed his client through his assistant to ‘clean up’ his Facebook account. ‘We do not want blow ups of other pics at trial,’ the assistant’s email to Lester said, ‘so please, please clean up your Facebook and MySpace!’ ”
The Court also found that Murray instructed the client to deactivate his Facebook account so that on the day that discovery responses were submitted the attorney’s response could be, and was, that the client did not have a Facebook account.
There are many lessons from this case. The more obvious ones are:
1. Don’t post anything on any social media site that you would not be comfortable being seen by anyone in the world- now and forever.
2. Assume that social media postings are forever.
3. You need to pursue social media evidence in all of your litigation cases.
4. You can assume that you opponent will be seeking social media evidence to use against your client in all of your cases.
5. You need to review the social media sites used by your key witnesses early in the game.
6. Counsel your clients not to post sensitive information on social media sites gong forward, but do not counsel them to remove posts already there.
7. Don’t play cute with your discovery responses.
8. Social media evidence is just like any other evidence and the duty of preservation applies.
9. Don’t forget to include social media postings in your legal hold instructions.
10. Resist the temptation to tamper with problematic evidence– this case is not worth the loss of your reputation and license.
To sum it all up– social media postings are evidence and will be treated as such by the courts. Be careful out there!