Electronic Discovery Law
Client & Counsel Sanctioned for Spoliation where Plaintiff was Instructed to "Clean Up" His Facebook Page
Lester v. Allied Concrete Co., Nos. CL.08-150, CL09-223 (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011)
In this case, significant monetary sanctions were ordered against the plaintiff and his counsel for egregious discovery violations, including intentional deletion of pictures on Plaintiff’s Facebook page per the instructions of Counsel and subsequent efforts to cover those instructions up, among others.
In this wrongful death case, Defendants sought production related to the contents of Plaintiff’s Facebook page, which were presumably relevant to the question of damages suffered by Plaintiff as the result of the tragic death of his wife. Attached to the request was a picture of the plaintiff "clutching a beer can, wearing a T-shirt emblazoned with 'I ♥ hot moms' and in the company of other young adults." Plaintiff's counsel (with the assistance of his paralegal) determined that the photo likely came from Facebook. Accordingly, Counsel accessed Plaintiff’s Facebook account and thereafter directed his paralegal to instruct Plaintiff to “clean it up” because “we don’t want blowups of this stuff at trial.”
Because the request for production specifically asked for the contents of Plaintiff’s account “on the day this request is signed,” Counsel also instructed Plaintiff to deactivate his account. Plaintiff’s response to the request for production, therefore, was that he had no Facebook account on the day the request was signed. The response was also signed by Counsel. Thereafter, upon being advised that he was obligated to produce the Facebook materials, Counsel instructed his client (through his paralegal) to reactivate the account. Plaintiff complied, and following the prior instruction to “clean up” his account, deleted 16 photos before the contents were printed for production by the paralegal (who claimed not to know of the deletions, as did Counsel). Later, testifying under oath, Plaintiff stated that he had never deactivated his account.
For reasons unknown, Plaintiff’s counsel later forwarded to the defense Plaintiff’s Facebook IP logs which he had acquired directly from Facebook. Upon examination of the logs, experts for both sides agreed that 16 photos had been deleted. Accordingly, the court ordered that an adverse inference instruction be given to the jury at trial.
Before trial, Defendants served the above mentioned paralegal with a subpoena duces tecum commanding production of all emails between herself and the plaintiff during the timeframe of the spoliation. The attendant privilege log and in camera production to the court omitted mention of the email in which the paralegal first instructed Plaintiff to delete photos from his account. The email was not disclosed until after trial, with the explanation that the omission was the fault of a different paralegal no longer with Counsel’s firm “when, in fact, [Counsel] knew his own misconduct caused the omission.”
At trial, Plaintiff was awarded a significant sum. Thereafter, Defendants filed several post-trial motions, including a Motion for Sanctions against Plaintiff and Counsel for the above-detailed behavior (among other reasons).
The court concluded that the actions of Counsel and the plaintiff warranted sanctions. Specifically, Counsel was ordered to pay monetary sanctions equal to the “reasonable expenses, including a reasonable attorneys fee, incurred by Defendants because of [Counsel’s] violation” of court rules by signing the dishonest discovery response. For Counsel’s omission of the incriminating email from his spoliation privilege log and in camera production and for Counsel’s dishonesty regarding the cause of the omission, the court ordered him to pay monetary sanctions equal to the “reasonable expenses, including a reasonable attorneys fee” incurred by the defendants as the result of his misconduct. Defendants’ Motion for Sanctions as to Plaintiff was also granted with the amount of the sanction to be determined.
Later, upon submission of Defendants’ Memoranda of Costs and Fees, the court issued a final order containing the specific amounts to be paid: Counsel was ordered to pay $542,000 and Plaintiff was ordered to pay $180,000. The court also indicated its intent to refer Counsel's violations of the Code of Professional Responsibilty to the Virginia State Bar and to refer "matters relating to allegations of perjury on the party of [Plaintiff] to the Commonwealth's Attorney for the City of Charlotte."
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