Spoliation of Facebook Electronic Data Led to Attorney Being Sanctioned
In the case Lester v. Allied Concrete, Case No. CL08-150(Cir.Ct. City of Charleston, VA), the trial court awarded plaintiff Lester $2,350,000 for personal injuries and $6,227,000 for the death of his wife. Defendants then filed motions for sanctions for spoliation of evidence against Lester and his attorney, Murray, based upon allegations that before the trial began, Lester deleted 16 photos from his Facebook account prior to turning over his plaintiff ESI production. However, Lester did produce these photos to defendants before the trial began.
Addressing the spoliation issue against Lester and specifically his attorney Murray, the court found that Murray instructed Lester to remove potentially incriminating information from Lester’s Facebook account, and Lester followed Murray’s advice by deleting the 16 photos and deactivating his account. Attorney Murray was also untruthful to the court by signing affidavits foreswearing any Facebook account. When defendants complained, Lester and Murray did admit to the Facebook account and provided screen shots, not including the 16 deleted photos. It was found that Murray also deceptively concealed information from the Privilege Log.
The court found multiple reasons to sanction both Lester and Murray, noting Lester did exactly as Murray instructed. In addition to monetary sanctions, the court found Murray’s perjury violated the Code of Professional Conduct and the Virginia State Bar. The court reduced Lester’s award of $6,227,000 for wrongful death to $2,100,000 and ordered Lester pay sanctions totaling $180,000 to the defendants. Murray was sanctioned and ordered to remit to defendants $542,000. The court also submitted its Order to the Virginia State Bar Ethics Counsel.