Social media has become a vital way to communicate with friends, family and colleagues. Status updates, tweets and texts have rapidly replaced letters and telephone calls as the preferred methods of communication for a large segment of the population. Indeed, recent figures indicate that one out of seven people in the world belongs to a social media site, such as Facebook, LinkedIn or Twitter. It was inevitable, then, that this pervasive force would wend its way into civil litigation. Just since the beginning of 2010, social media evidence has been addressed in more than 600 published decisions. Some recent cases of interest include  Tompkins v. Detroit Metropolitan Airport, 2012 WL 179320 (E.D. Mich. Jan. 18, 2012) (court found that defendant must make a sufficient predicate showing that the private Facebook material sought in discovery is reasonably calculated to lead to the discovery of admissible evidence); Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011) (court granted a defense request for an in-camera review of plaintiff’s private Facebook page to determine whether or not the content was responsive to the defendant’s discovery requests); and State of Connecticut v. Eleck, 23 A.3d 818 (Conn. App. 2011) (court did not allow Facebook postings to be used to impeach prosecution witness, stating that the postings had not been properly authenticated as being posted by witness, even though they originated from witness’s Facebook account).

Accompanying social media’s increased presence in cases and in the courtroom are rules and sanctions related to spoliation of social media evidence. Thus far, spoliation sanctions in this realm have been rare. A recent Virginia state court decision, however, demonstrates the ramifications of poor decisions by both counsel and parties when dealing with run-of-the-mill discovery requests that have a social media element.

Lester v. Allied Concrete Co., No. CL 08-150 (Va. Cir. Ct. Oct 21, 2011), was a wrongful death case stemming from a tragic set of circumstances. In 2008, truck driver William Donald Sprouse pleaded guilty to charges of involuntary manslaughter for the accidental death of Jessica Lester. According to news reports, Sprouse’s “truck rounded a corner on two wheels, flipped and rolled over onto Lester’s car, a crushing 60,000 pounds landing where Jessica sat.” Jessica Lester’s husband of two years and her parents subsequently sued Allied (Sprouse’s employer) and Sprouse, eventually winning a jury verdict of over $10 million, making it reportedly one of the largest wrongful death verdicts in the state’s history.

That verdict, however, was short-lived. The court’s post-verdict order in the case addressed a plethora of complaints from defense counsel regarding Lester’s conduct and the conduct of his attorney, Michael Murray, both before and during trial.  Among other things, the court found that Lester and his counsel intentionally spoliated evidence found on Lester’s Facebook page. Even though all material on the page was ultimately recovered and produced and the court found that defendants suffered no prejudice, the court found that sanctions were warranted.

During the course of discovery, Allied’s counsel learned that Lester had a photo on his Facebook page of himself in an “I [heart] hot moms” t-shirt, holding a beer can, and standing with other young adults. Sensing that this activity was inconsistent with his self-portrayal as a grieving widower, Allied served discovery requests along with a copy of the photo, asking for screenshots of Lester’s Facebook page “as of the date the request was signed.”

Upon receiving this request, Murray instructed his assistant to contact Lester and tell him to “clean up” his Facebook page because “we don’t want blowups of this stuff at trial.” His assistant e-mailed Lester the next day. Murray then instructed his client to deactivate the page entirely, so that he could represent in his response to the discovery requests that he had “no page as of the date of the response.” After further wrangling between the parties, the page was re-activated so that screenshots could be taken, but Lester then “cleaned up” the page consistent with the prior instructions, deleting 16 photographs and other evidence. Lester later denied during his deposition that he ever deactivated his account.

Suspicious about these activities and Lester’s testimony, defense counsel subpoenaed from Murray all e-mails between Murray and Lester that related to the Facebook account. Not surprisingly, Murray and Lester resisted, claiming work product and attorney-client privilege.  When the court ordered Murray to produce a privilege log, he did so, but he withheld the e-mail from his assistant instructing Lester to clean up his Facebook page. Murray subsequently produced the e-mail to the judge, claiming the omission was an oversight by a paralegal.

The court found this behavior to be aberrant and that due to “the extensive pattern of deceptive and obstructionist conduct of Murray and Lester … most of the substantial fees and costs expended by Defendants were necessary and appropriate to address and defend against such conduct.” The court also found specifically that Lester intentionally spoliated evidence.

Ultimately, the wrongful death verdict was slashed to $4.45 million for reasons ostensibly unrelated to Lester’s and Murray’s conduct. Moreover, the court sanctioned Murray in the amount of $542,000, and Lester in the amount of $180,000, citing as primary reasons their actions relating to Lester’s Facebook page. Murray’s conduct was referred to the Virginia State Bar. Since the court’s October 2011 ruling, Murray reportedly has left his position at his law firm and quit the practice of law.

While this case obviously involves extreme behavior on the part of counsel, it gives rise to some important tips to keep in mind when dealing with any case involving social media:

1. Don’t Forget That the Rules Still Apply. When new technology is introduced to discovery, many attorneys try to stretch the limits of discovery as far as possible. For example, when parties first began to produce documents in electronic rather than paper form, many attorneys would purposely not produce load files, searchable text, or any metadata – all things now considered to be commonplace – in order to “one-up” their opponents. Similarly, there may be a tendency to think that social media accounts provide a strategic opportunity for gamesmanship, because social media can be mercurial and capable of manipulation. Attorneys should be aware, however, that the same rules of evidence apply to social media sites as to other evidence. Accordingly, in the same way you would not instruct a client to shred files or trash a hard drive, no changes should be made to relevant or potentially responsive evidence on social media accounts once litigation is reasonably anticipated. Also, know the rules of your jurisdiction – courts are becoming increasingly savvy with e-discovery and several of them have particular guidelines to guide parties through e-discovery disputes. Two good examples are (1) the U.S. District Court of Maryland’s Suggested Protocol for the Discovery of Electronically Stored Information, which can be found at http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf; and (2) the New York State Bar Association’s “Best Practices In E-Discovery In New York State and Federal Courts,” which can be found at http://www.nysba.org/AM/Template.cfm?Section=Home&ContentID=58331&Template=/CM/ContentDisplay.cfm.
2. Ensure That Social Media Is Preserved. Facebook pages (for individuals and companies), web pages, tweets and electronic boards are often overlooked in current litigation hold notices. Make sure that the appropriate individuals at a client company have received litigation hold notices that specifically mention that, to the extent they may contain potentially relevant information, social media must be preserved. To the extent possible, have your e-discovery vendor, IT support personnel or client download a complete copy of any such social media as soon as a hold goes in place; impress upon them the fact that information cannot be deleted; and regularly check to make sure that no new data has been added and/or changed on the site during the course of litigation. Also, most social media sites operate by using cloud computing, which often has shorter electronic retention policies than most companies with dedicated server space. Be aware that since social media may involve outside organizations that operate with their own set of restrictions, it is important to start early. 
3. If Inadvertent Spoliation Occurs, Report It. It is doubtful that the sanctions against Murray and Lester would have been as severe as they were if it were not for their repeated and systematic cover-up of the deleted information. Courts realize that the discovery of electronically stored information, while increasingly prevalent, still creates unique challenges. If counsel is able to make the case early on that the spoliation was inadvertent and that the party took reasonable steps to identify, recover and/or quantify the information lost, sanctions are likely to be less severe.
4. Engage Competent Vendors and Counsel Early for Advice. Make sure that your vendor has experience with collection and/or analysis of social media specifically, including preservation of associated metadata, and that your counsel likewise is on top of current social media issues that may affect your case. Importantly, while an e-discovery vendor should always be a key member of the discovery team, your outside counsel must be able to identify both technical and legal issues to make sure that the vendor is operating efficiently and effectively.

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While Virginia may have been one of the first states to delve into the social media sanctions waters, it certainly will not be the last. Lester teaches us that, despite the novel format, the rules of civil procedure still apply to e-discovery. Claims professionals and counsel should be alert for social media issues in their cases and should question insureds (and claimants) about their social media practices in order to assure that all relevant information is captured for discovery. The Lester case also demonstrates the importance of addressing these issues early – if you know information exists that may be helpful (or damning) to your case, it is best to assess any potential social media pitfalls as soon as practicable, not to wait until a discovery request with a potentially damaging photograph appears in your inbox.