Monday, November 14, 2011

Sternly, and In Writing, Warn Clients Not to Mess With Facebook

Sternly, and In Writing, Warn Clients Not to Mess With Facebook

In Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011), Judge Edward Hogshire of the Circuit Court for the City of Charlottesville, Virginia issued an order which reduced by fifty-percent a $10.6 million jury verdict and imposed $722,000 in sanctions.  $542,000 of the sanctions were imposed on counsel for plaintiff-Lester, and the remaining $180,000 on plaintiff Lester himself.  The basis for the court’s sanction was an “extensive pattern of deceptive and obstructionist conduct of Murray and Lester…”  In March of 2009 plaintiff’s counsel received a discovery request for the contents of plaintiff’s Facebook account.  At that time, plaintiff’s Facebook account contained a photo of plaintiff wearing a “I [heart] Hot Moms” t-shirt and holding a beer can with other young adults.  According to later deposition testimony, plaintiff’s counsel instructed a paralegal to tell plaintiff to “clean up” his Facebook page because “we don’t want blowups of this stuff at trial.”  Thereafter, plaintiff’s counsel allegedly came up with a scheme to take down or deactivate plaintiff’s Facebook account so that he could respond to defendant’s discovery request by stating that plaintiff had no Facebook page on the date the discovery was signed.  Allegedly, when defense counsel filed a motion to compel, plaintiff’s counsel instructed plaintiff to reactivate the account. Plaintiff denied deactivating the account during a later deposition.  Plaintiff’s counsel was also accused of withholding an e-mail from the paralegal instructing plaintiff to “clean up” his Facebook page.  Finally, plaintiff’s counsel allegedly claimed, falsely, after the trial, that the failure to produce the e-mail was the paralegal’s mistake.
In addition to the $542,000 sanction imposed on plaintiff’s counsel, the judge referred the matter to the Virginia state bar.  

Tip of the hat to Christopher Danzig, writing for Above the Law, whose post called this to our attention. 

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