Facebook Destruction of Evidence Cost Attorney and Client $700,000 in Sanctions

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Folks if you have been paying attention to my blog entries, you know I have a keen interest in the intersection of social media and the law. It is all a new emerging field and as an avid blogger and a trial lawyer, it only makes sense I naturally gravitate towards this new field that is full of so much legal drama. I have said, in the past, anything you say and do on Facebook can and will be used against you in the court of law. So, if you do not want, in the event of a lawsuit, attorneys subpoenaing and snooping into your life, then be sure what you post on Facebook is what you would be comfortable seeing and hearing in front of a  jury, media (depending on the case) and the public at large.

What is “discoverable?” Content on your facebook walls, pages, status updates etc. Your facebook emails are an entire different ball game and depending on the facts, trial lawyers could have a field day arguing whether your Facebook emails are discoverable. Who wins? It depends on the facts.

Avoid discussing your health, who you are dating, personal brouhaha’s you may or may not have with others on Facebook. Avoid gossip and spreading false rumors about people. If you told your spouse/GF/BF you were headed to the store to buy an item, but you are on facebook saying you are “chilling with a hot babe/beau,” Facebook could incriminate you and create personal drama out of the courtroom that could get you into the courtroom. So, use Facebook wisely.

Now, check out an excerpt from the case below where an attorney told his client to delete the client’s facebook page. See what happened. As a recap, if you get sued, you should not try to destroy, modify, alter, tamper with or do anything to evidence stemming or related to the litigation in dispute. Aggressive attorneys like myself should and will probably send you/your legal team, immediately at the onset of a suit, a preservation of evidence letter notifying you that you MUST not modify, conceal or destroy evidence, among other things. We refer to this in law as “Spoilation of Evidence.”

Read on . . .

“According to a September 1 order from Judge Hogshire, the spoliation began in March 25, 2009, when Murray received a discovery request for the contents of Lester’s Facebook account. Attached was a photo of Lester wearing a “I [heart] hot moms” t-shirt, and holding a beer can with other young adults.

Murray instructed a paralegal to tell Lester to “clean up” his Facebook page because, “we don’t want blowups of this stuff at trial,” the assistant, Marlina Smith, said in a deposition. She emailed that message to Lester the next day.

On March 26, 2009, according to the judge’s order, Murray came up with a scheme to take down or deactivate Lester’s Facebook account so that he could respond that he had no Facebook page on the date the discovery request was signed.

When defense attorneys filed a motion to compel, Murray instructed Lester to reactivate the account. But in a December 16, 2009, deposition, Lester denied deactivating the account.

Murray is also accused of withholding the email from Smith instructing Lester to clean up his Facebook page when he was ordered to produce it shortly before the trial began. Murray falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order. . .”

-Above the Law has the full story.

Photocredit: Steve Lombardi/Iowaedict.com

Uduak Oduok (Ms. Uduak) is a Partner and Co-Founder of Ebitu Law Group, P.C. where she handles her firm’s fashion and entertainment law practice areas. Ms. Uduak has litigated a wide variety of cases in California courts. She has also handled a variety of entertainment deals for clients including network television and licensing deals. Her work and contributions to the creative industry has been recognized by numerous organizations including the National Bar Association, and featured in prestigious legal publications in the USA: ABA Journal and The California Lawyer Magazine. She is also the author of Fashionentlaw™ and also has over two decades combined hands on industry experience in the creative industry which includes modeling, retail, fashion production, public relations, digital media, journalism and publishing. For further inquiries or if you are seeking legal representation, please email (uduak@ebitulawgrp.com). You may also follow her on twitter at @uduaklaw


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