Just a reminder that what is digital is permanent, to include the not-so-social media of Facebook, Myspace, etc. The following post by John Patzakis from Next Generatione eDiscovery Law and Tech Blog goes to show you there are risks in the internet age that did not even appear on the horizon when we went to law school back during the BC (before computers) era.
Might want to consider placing a "legal hold" on the social medial stuff rather than wiping it out. Attorney ordered to p;ay $522,000 for instructing the client to remove the photos from the Facebook profile.
A "legal hold" is described as (and which was found at FACEBOOK page, click here.
A legal hold is a process which an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated.
The legal hold is initiated by a notice or communication from legal counsel to an organization that suspends the normal disposition or processing of records, such as backup tape recycling, archived media and other storage and management of documents and information. A legal hold will be issued as a result of current or anticipated litigation, audit, government investigation or other such matter to avoid evidence spoliation. Legal holds can encompass business procedures affecting active data, including, but not limited to, backup tape recycling.
Recent amendments to the United States Federal Rules of Civil Procedure (FRCP) address the discovery of electronically stored information (ESI) (aka e-discovery), expanding the use of a "legal hold" beyond preservation of paper documents. The amendments were written in anticipation of legal arguments and tactics related to the production of ESI, such as the cost and difficulty of producing such ESI and claims that such ESI was missing, deleted, or otherwise inaccessible when it really wasn’t the case. These changes took effect December 1, 2006 and require organizations to hold all electronic records until each legal matter is formally settled, even if an organization only reasonably anticipates litigation.
There are three main requirements that comprise a legal hold process:
An organization has a duty to preserve relevant information when it learns, or reasonably should have learned of pending or threatened litigation, or of a regulatory investigation. In order to comply with its preservation obligations, the organization should inform records custodians of the respective custodian’s duty to preserve relevant information. The organization should provide instructions for doing so. This traditionally cumbersome process may be automated with workflow to ensure all custodians receive a formal notice and agree to its terms."
END OF WIKIPEDIA QUOTE.
Now, back to my own commentary, questions, and what-ifs.
Of course, the question is if the pages and the photos were off-loaded but preserved prior to deleting and closing the account would that have avoided the spoliation issue? Are you required to keep it in its original format and available for the world? Can you go private or unfriend everyone and keep the pictures posted? Close down the site with no friends and open a newer one?
You got me. If the simple instructions were to remove, but the attorney "captured" each page, each picture, etc. so the materials were not destroyed but simply moved elsewhere, then would the court have held there was spoliation? Hmmmmm. Hello, KBA what are the chances of our association totally misunderstanding this one and dropping the ball as they did in the early days of blogging? It is so hard to write opinions in the computer age when you think a Selectric typewriter is the bomb!
Please note that the court held the client who removed the page liable for $180,000 for following his lawyer's instructions. Now, that this issue has been posted with the matter of unseemly photos a potential problem in personal injury cases would that make the blogger who posted the decision above a putative spoliator, or for that matter, me? Where do the dominoes stop?
Finally, is spoliation of evidence a cause of action in Kentucky, an ethics complaint, or just an evidentiary ruling? Well, I may have answered my own question and refer you to Monsanto Co. v. Reed, 950 S.W.2d 811, 815, (Ky. 1997), in an opinion written by Chief Justice Lambert. Too late to Shepherdize it, so rely on it at your own peril. UPDATED: Shepherdized it and this portion still looks good (the dicta that is), but again rely on this case at your own peril. However, Monsanto was favorably followed in Bandy v. Norfolk So. Ry. Co, 2006, Ky. App, UNPUBLISHED Opinion.
As a final matter, we turn to the Court of Appeals creation of a new cause of action for "spoliation of evidence." In its opinion, the court recognized that "sanctions are provided for intentional or negligent destruction of relevant evidence," but insisted that recognition of the tort of spoliation was "consistent with the statutory and common law of this jurisdiction." The court then delineated the elements of the intended tort and remanded to the trial court to permit appellees' amendment of their complaint for recovery under this cause of action.
We decline the invitation to create a new tort claim. Where the issue of destroyed or missing evidence has arisen, we have chosen to remedy the matter through evidentiary rules and "missing evidence" instructions. See Tinsley v. Jackson, Ky., 771 S.W.2d 331 (1989) and Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988). The Court of Appeals recognized that only three states have adopted this tort claim. The vast majority of jurisdictions have chosen to counteract a party's deliberate destruction of evidence with jury instructions and civil penalties. Representative of this approach is Federated Mutual Insurance Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434 (Minn. 1990). We will remain among those jurisdictions and not now allow such claims for relief.
Attorney in wrongful death claim instructs his client to get rid of social media pages which might hurt the wrongful death claim. Here is John Patzakis' post::::::
"In what many are calling the largest eDiscovery sanction penalty ever leveled directly against an attorney, a Virginia state judge ordered lawyer Matthew Murray to pay $522,000 for instructing his client to remove photos from his Facebook profile, and for his client to pay an additional $180,000 for obeying the instructions. A copy of the final order in Lester v. Allied Concrete Company is available here.
If Murray had initiated a proper legal hold concerning his client’s social media evidence instead of directing blatant spoliation, he would be a lot wealthier and likely kept his job. Instead, he apparently quit his position as managing partner of the largest personal injury firm in Virginia and, according to local press reports, he no longer practices law.
The court’s findings reflect that Murray told his client to remove several photos from his Facebook account on fears that they would prejudice his wrongful death case brought after his spouse’s fatal automobile accident. One of the photos depicts the allegedly distraught widower holding a beer and wearing a t-shirt emblazoned with “I [heart] hot moms.” Murray instructed his client through his assistant to “clean up” his Facebook account. “We do not want blow ups of other pics at trial,” the assistant’s email to Lester said, “so please, please clean up your Facebook and MySpace!”
This case reflects a trend we see based on anecdotal data points where a minority of legal and eDiscovery practitioners have not quite placed social media evidence on the same par as other electronic evidence. For instance, I believe it is highly unlikely that Murray would have instructed his client to delete all his emails or wipe his hard drive, but for some reason he differentiated social media evidence."
Click here for ABA Book on Spoliation of Evidence -
Spoliation of Evidence: Sanctions and Remedies for Destruction of Evidence In Civil Litigation, Second Edition
Here is a post from Clausen Miller law firm's web site discussing an Illinois decision regarding spoliation as a tort and/or evidentiary remedy.
These posts and comments are designed to start you on the road of a more successful and stressful law practice and hopefully stir up some commentary and debate.
Here is a link to a survey of the 50 states' rules on spoliation (a few years old):
BTW: I apologize for the rambling nature and discourse of this article but this was a free flow analysis as I went from link to post, back to my blog, some ruminations, rabbit trails, and rumblings of my own.