|Hello welcome to this JACPA Ethics Alert blog which will discuss recent Virginia Circuit Court opinion(s) imposing sanctions on a plaintiff and the plaintiff’s lawyer for deleting information on Facebook and engaging in a cover up related to the deletions. The opinions are Lester v. Allied Concrete Co., CL.08-150, CL09-223 (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011).
According to the opinions, Lester sued Allied Concrete Company and William Sprouse seeking monetary damages for negligence and wrongful death. The defendants sought the production of screen print copies of Lester’s Facebook account, including all of his pictures, message board, status updates, and messages sent or received and attached to their request a photo of Lester holding a beer can while wearing a t-shirt with the logo “I (heart) hot moms,” which Lester’s lawyer thought was taken from Lester’s Facebook account.
The lawyer rationalized that since the request was for production of screen print copies on “the day this request is signed”, if the Facebook account was deactivated prior to signing the responses, there would be nothing to produce. The lawyer instructed his paralegal to tell Lester to “clean up” his Facebook because “we don’t want blowups of this stuff at trial.” The paralegal sent two e-mails to Lester instructing him accordingly. The response to the production request were provided one day after the deactivation and the response stated “I do not have a Facebook page on the date this is signed, April 15, 2009.”
The defendants then filed a motion to compel discovery. After consulting with another lawyer, Lester’s lawyer told his paralegal to instruct Lester to reactivate his account and Lester did this; however, following the earlier instructions, he deleted sixteen photos when the paralegal was printing the screens. Both the lawyer and the paralegal later claimed that they were unaware that the photos were deleted at the time they prepared their amended response. Lester denied that he had deactivated his Facebook account both at his deposition and during trial.
The defendants then filed a motion for sanctions related to the spoliation of the evidence. The defendants’ expert, using Facebook’s IP logs provided by Lester’s lawyer, testified that spoliation (deletion) had occurred and that Lester had deleted the photos. Lester, through the lawyer, then admitted that he had made the deletions. The trial court found that there had been spoliation by Lester and that an adverse inference should be given at trial regarding the spoliation. The court further stated that Lester and his lawyer would be subject to further findings of fact and possible sanctions.
The jury awarded more than $8 million dollars to Lester after a trial and both parties filed post trial motions, including defendants’ motion for monetary sanctions against Lester. The motion also addressed, inter alia, the failure of plaintiff’s lawyer to respond to the subpoena duces tecum previously served on the paralegal requesting any and all e-mails between the paralegal and Lester for a specific period of time. The trial court deferred entry of the jury verdict and required the lawyer to produce all e-mails for an in camera inspection and all previously subpoenaed documents that the plaintiff had previously claimed to be privileged.
The lawyer produced a privilege log and an “enhanced privilege log” (which the trial court ordered after finding that the first log was not adequate); however, both logs failed to include the e-mail that the paralegal sent to Lester with the lawyer’s instructions. The court found that the lawyer had intentionally omitted the e-mail and tried to blame the omission on the mistake of his paralegal and granted defendants’ motion for monetary sanctions against both Lester and the lawyer finding that Lester had engaged in the spoliation by deactivating his Facebook account and claiming he did not have an account in the original “misleading response,” by deleting the sixteen photos, and lying at his deposition and at trial by claiming that he never deactivated his page or deleted the photos.
The court also found that the lawyer violated Virginia Bar disciplinary rules by obstructing the production of documents as follows: by drafting a deceptive response, instructing his client to deactivate his Facebook account; signing the responses with the statement that Lester did not have a Facebook as of April 15, 2009; failing to include the paralegal’s e-mail on multiple privilege logs, failing to produce the e-mail for an in camera review, and falsely stating that the omission was the fault of a member of his staff when it actually was his own intentional act.
The trial court ordered both Lester and the lawyer to pay the defendant’s attorney’s fees of $722,000.00 and found that Lester was responsible for $180,000.00 and the lawyer was responsible for $542,000.00. Finally, the trial court referred the alleged Bar Rule violations to the Virginia State Bar and the alleged perjury by Lester to the prosecutor’s office for further investigation.
Bottom line: Sir Walter Scott once said “Oh what a tangled web we weave, when first we practice to deceive.” This case is tangled and illustrates the perils when a lawyer engages in conduct which he rationalizes as permitted under a tortured interpretation of a (clearly poorly worded) production request and then “covers it up” (not to mention fails to correct a false statement made by a client under oath at both a deposition and at trial. Don’t do this… I know that you won’t!
…and be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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