Litigant And His Lawyer Fined For “Cleaning Up” Facebook Page

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delete-fb-accountHere’s the background to Allied Concrete v. Lester: In 2007, Lester was driving his wife to work when their car was hit by a truck, driven by an employee of Allied Concrete. Lester’s wife died as a result of the accident. After a combined wrongful death and personal injury (suffered by himself) trial, Lester was awarded about $8.5 million by a jury. Following that verdict:

Allied Concrete filed multiple post-trial motions, including motions for sanctions against Lester and the lead attorney on the case, Matthew B. Murray (“Murray”), arguing that Lester conspired with Murray to intentionally and improperly destroy evidence related to Lester’s Facebook account and provided false information and testimony related to his Facebook page… and the spoliation of Facebook evidence. Further, Allied Concrete contended that Murray engaged in deception, misconduct, and spoliation related to Lester’s Facebook account.

“During the pendency of the actions,” Lester sent one of Allied’s attorneys a Facebook message. Why he was contacting opposing counsel using the worst messaging system in the world is a mystery. Worse, it allowed the Allied attorney to access Lester’s profile page. Shortly after hat, Allied made a broad discovery request, asking for  “screen print copies… of all pages from Isaiah Lester’s Facebook page including, but not limited to, all pictures, his profile, his message board, status updates, and all messages sent or received.” Along with the request for production, Allied attached a photo that their attorney had downloaded from Lester’s account. We’ll let Judge Hogshire’s opinion [PDF] describe it:

The photo depicts Lester accompanied by other individuals, holding a beer can while wearing a T-shirt emblazoned with “I ♥ hot moms.”

Through his paralegal, Murray instructed Lester to “clean up” his Facebook page because “[w]e do NOT want blow ups of other pics at trial so please, please clean up your facebook and myspace!” After deleting his account, Lester responded to Allied’s request to produce by saying “I do not have a Facebook page on the date this is signed[.]” Nice try, but of course Allied knew that a profile had until-recently existed, so they filed a Motion to Compel Discovery. Lester reactivated the account, deleted 16 photos from his page, and then handed them over to Allied. To make things worse:

At a deposition… Lester testified that he never deactivated his Facebook page. As a result, Allied Concrete had to subpoena Facebook to verify Lester’s testimony. Allied Concrete also hired an expert … (“Scotson”) to determine how many pictures Lester had deleted. Scotson determined that Lester had deleted 16 photos on May 11, 2009. This was later confirmed by an expert hired by Lester to examine Scotson’s methodology. All 16 photos were ultimately produced to Allied Concrete.

In response to all of Allied’s post-trial motions, a trial court granted sanctions against Murray ($542,000) and Lester ($180,000) to cover attorney’s fees. This appeal followed, wherein Allied argued that, amongst other things, “the trial court erred in denying its motion for a retrial because the entire trial was tainted by Lester’s dishonest conduct and Murray’s unethical conduct.” The appeals court disagreed, because

Allied Concrete was fully aware of the misconduct prior to trial. Furthermore, it allowed all of the spoliated evidence to be presented to the jury and gave a jury instruction relating to Lester’s misconduct twice, once during his testimony and once before the case was turned over to the jury.

It was held that “Allied Concrete received a fair trial of the merits”, where “any prejudice Allied Concrete may have suffered as a result of the misconduct of both Lester and Murray” was suitably mitigated. So, no new trial, but the sanctions against Lester and Murray remained.

The lessons here? Facebook is a permanent record, even if you think you’ve deleted your account. More importantly, don’t communicate with your opposing counsel without your own lawyer’s approval. Oh, and lawyers, once you realize that opposing counsel has seen potentially harmful photos, don’t ask your client to “clean up” their page – that just makes things worse.

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