Got the Picture?

Case: Lester v. Allied Concrete Co., Case Nos. CL08-150, CL09-223, Circuit Court of the City of Charlottesville, Virginia, 2011 Va. Cir. LEXIS 132 (October 21, 2011).

Topic: $700,000 sanctions for spoliation of photos on social media site.

Facts: Plaintiff Isaiah Lester was injured and his wife was killed in a car accident involving a driver employed by Defendant Allied Concrete. Lester brought a lawsuit for his own injuries and as the beneficiary of his wife's estate. Before trial, Lester admitted that he had deleted photos of himself from his Facebook page after a request by Allied Concrete for production of the site's content. As a sanction for that spoliation, the judge allowed an adverse inference instruction to the jury. Despite the instruction, the jury awarded Lester $2.3 million for his own injuries and $6.2 million as the beneficiary of his wife's estate.   

Allied Concrete's various post-verdict motions included a request for remittitur and a motion for additional sanctions against both Lester and his attorney. Allied Concrete alleged that Lester and his attorney had lied in sworn testimony about removing photos on Lester's Facebook page-including one photo of Lester holding a beer and wearing a shirt with the slogan "I ♥ hot moms." Previously, Lester's attorney answered that no responsive data existed in response to Allied Concrete's original discovery request seeking content from Lester's Facebook page. Lester's attorney attempted to justify this answer by the fact that no data existed at the time the discovery responses were served; in fact, data had existed when the Allied Concrete had propounded the request, but Lester had taken it off his Facebook page before serving the responses. Indeed, Lester's attorney had failed to include an email his office sent to Lester instructing him to "clean up" his Facebook page in a privilege log he provided to the court. Though Allied Concrete eventually had all of the photos at issue available to it at the time of trial, it moved to recover a sanction of $722,000 in fees and forensic and other expenses incurred to establish the misconduct. The court ruled in Allied Concrete's favor, and ordered sanctions in the amount of $180,000 against Lester and $542,000 against his attorney. In addition, the court ordered a $4 million remittitur. Both sides have appealed.    

BuLITS Points

  • Both individual and company social media count. The tweets, posts and other social media musings of companies and individuals are here to stay. Given the many unforeseeable ways in which the use of social-media sites can create potentially relevant information in litigation, all users of social media - as soon as there isa prospect of litigation - should bealert to thepotentialhazards of using these sites.
  • Consider social media in your e-discovery plan. The growing prevalence of social media means that content from social media sites should be considered at all key points in a company's e-discovery investigation. Counsel involved in litigation should remember to determine whether social media content needs to be included in litigation holds and requests for production. If the answer is yes, counsel must then consider whether the discovery responses accurately reflect responsive social media data.
  • Gone but not forgotten. As discovery forensics continue to improve, social media posts that may seem gone might just reappear. As the court's opinion here shows, a determination that a deletion has been deliberate may prove more harmful than the original content that sparked the removal effort.

And Remember

Spoliation is spoliation, no matter what's destroyed. While its unlikely that the attorney in Lester would have instructed his paralegal to "clean-up" (destroy) potentially responsive paper documents, this ruling shows that intentional destruction of social media content can have the same consequences-and draw the same sanctions-as wholesale document destruction.


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