When most attorneys think of the doctrine of “spoliation,” they picture shadowy figures shredding crucial documents or stripping hard drives of damning emails and files. Prior to 2011, a vast majority of spoliation issues revolved around the physical destruction of discoverable information either on paper copies or hard drives and servers. However, following a contentious 2011 personal injury case, a new area of spoliation is sure to grow rapidly. Something as simple as clicking “delete” on a client's Facebook page caused one attorney to lose millions, and potentially end his legal career.

In Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (VA. Cir. Ct. Oct. 21, 2011), Isaiah Lester sued Allied Concrete Company for negligence and wrongful death after Lester’s wife was killed in an accident with an Allied truck. With the help of his attorney, Matt Murray, Lester was awarded a record $10.6 million dollar jury verdict. However, their victory in the courtroom was short-lived.

Nearly a year after the verdict, the judge in the case signed a final order, which levied harsh sanctions due to spoliation and cited an “extensive pattern of deceptive and obstructionist conduct of Murray and Lester.” Did Murray and Lester destroy potentially embarrassing medical documents or withhold emails that could otherwise damage their case? Not quite, but while the judge’s final order laid out instances of spoliation that were novel at the time, they are sure to be rehashed in future cases.

During the discovery phase of the Lester case in 2009, Murray received a discovery request seeking the contents of Lester’s personal Facebook account. Attached to the discovery request was a photo of Lester wearing an “I [heart] hot moms” t-shirt while holding a beer can, which Murray presumed was taken from Lester’s Facebook account and dated after the death of Lester’s wife. Murray immediately told an assistant to tell Lester to “clean up” his Facebook page because “we don’t want blowups of this stuff at trial.”

After the assistant told Lester to “clean up” the page, Murray decided that it would be best if the page was deactivated altogether, since the discovery request sought production of the Facebook page on the day the response was signed. Murray posited that if the Facebook page was deactivated prior to signing the discovery responses, then he would have nothing to produce. On the discovery response, Lester stated “I do not have a Facebook page on the date this is signed, April 15, 2009.”

Unfortunately for Murray and Lester, the Court did not see eye to eye with their plan. Defendants quickly realized that Lester deactivated his Facebook account and filed a Motion for Sanctions. Murray and Lester’s actions were undeniable, as Defendants brought in an expert to testify that according to Facebook’s IP logs,[1] multiple pictures were deleted and Lester’s profile was deactivated just one day before the discovery responses were sent back to Defendants. At the Motion for Sanctions hearing, Lester and Murray admitted there had been spoliation.

Despite the admission of spoliation by Lester and Murray, the Court levied severe penalties on both men. First, the Court cut the $10.6 million dollar jury verdict in half. Second, sanctions were levied against Murray to the tune of $542,000, and against Lester in the amount of $180,000. Lastly, the Court referred Murray’s violations to the Virginia State Bar, which has yet to complete their review.

The main takeaway from this case is that all of these sanctions, over $6 million worth, came as the result of a single click on Lester’s Facebook profile. With the explosion of social media sites, and the lack of time and difficulty it takes to remove embarrassing information from these sites, cases like Lester are sure to repeat themselves. While the production of information posted on social networking sites is nonetheless constrained by relevance, it may not be worth the risk of a Court’s determination that harmful, embarrassing and/or inappropriate postings on Facebook and other social networking sites may be discoverable.