Virginia Court Sanctions Plaintiff And His Attorney For Deleting Facebook Photos

November 30, 2011

By Antonio P. Garcia, Jr., Esq.

Who do you know has a Facebook page? Or a Google+ page? Millions of people use such media to inform others about the status of their lives. Arguably the best way people express themselves through such media is by posting thousands of photos to their pages to display to the world evidence of how happy (or unhappy) their lives are. In a lawsuit, what is contained in such photos also could be the best evidence to help you win (or lose) your case.

"Spoliation of evidence" is a legal phrase describing when a party to a lawsuit intentionally destroys evidence prior to trial. Evidence in electronic form, such as e-mails, electronic photos, and audio files, generally is discoverable if it is relevant to a case. Hence, the destruction of such relevant evidence could result in severe penalties for the party and its attorney. Such was the case for Isaiah Lester, a plaintiff who destroyed photos on his Facebook page at the instruction of his lawyer, Matthew Murray, during a wrongful death suit in Virginia state court. What resulted was quite possibly the largest fine imposed upon a lawyer for spoliation of evidence,

In Lester v. Allied Concrete Co., Case Nos. CL08-150 & CL09-223 (Va. Cir. Ct. 2011), Lester sought damages from the defendants for causing the death of his wife. Among other things, Lester sought damages for pain and suffering.

Prior to trial, the defendants gained access to Lester's Facebook page through the page of one of their attorneys' friends. The defense attorneys saw photos in which Lester was seen drinking alcoholic beverages and wearing a t-shirt stating "I [heart] hot moms" while being surrounded by young adults. After viewing Lester's page, the defendants requested Murray to produce the photos from Lester's Facebook account.

After receipt of the request, Murray instructed Lester to "clean up" his account because the jury may view such photos negatively at trial. Lester subsequently deleted the photos and deactivated his Facebook account. The defendants protested and sought the court's assistance. The defense was able to establish through an expert's research and testimony that Lester deleted the photos. Murray then instructed his client to reactivate his account. Lester then provided the photos to the defendants shortly before trial. At trial, the jury found in favor of Lester and awarded him up to $2.5 million in damages.

After trial, the court ruled that any e-mail communications between Murray and Lester which were related to the Facebook page were not protected by the attorney-client privilege, and demanded copies of the communications.

Based on the photos and the communications between Lester and Murray, the court found that Lester actually lied about his depression over his wife's death and about his treatment for the depression. The court also found that Lester falsely stated that he did not deactivate his Facebook account, and lied about his attempts to delete its contents. The court found that Murray's actions amounted to spoliation of evidence, and he tried to cover his tracks. The court sanctioned Lester in the amount of $180,000, and Murray was sanctioned in the amount of $522,000. Murray, who was the managing partner of his law firm, allegedly resigned after the incident and is no longer practicing law.

Although the Lester case demonstrates the serious negative consequences associated with the spoliation of evidence, the case also demonstrates the great value of social media evidence. Such evidence could be critical in determining the fate of your client's case. If Lester's photos had been produced to the defendants much earlier in the case, then such evidence could have been used as leverage to foster a settlement and could have prevented a costly trial. In addition, such photos could have been analyzed and used more effectively for trial, and consequently Lester could have been awarded less damages than he initially obtained. Hence, social media evidence could be very relevant in cases, and parties should have lawyers who are skilled in obtaining and evaluating such evidence to tip the scales in their favor.