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Social Media Spoliation Hits Lawyer Hard

November 30, 2011

The extent to which social media becomes a part of litigation and e-discovery requirements might seem to be a moving target these days. Are Facebook accounts and postings admissible to litigation proceedings? Can an individual claim that their MySpace or LinkedIn postings should be considered private? Do the rules of e-discovery apply to social media tools just as they do for e-mail?

A recent case in Virginia is part of what seems to be a growing trend toward the acceptability of social media in civil litigation. In Lester v. Allied Concrete Company, the 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 as penalty for removing the photos in the same account. (Copy of the final order can be accessed at http://cache.abovethelaw.com/uploads/2011/11/Final-Order.pdf)

The court found that Murray told his client to remove photos from his Facebook account during his wrongful death case and instructed his client through his assistant to “clean up” his Facebook account. The blog noted that Murray’s assistant e-mailed his client stating, “We do not want blow ups of other pics at trial, so please, please clean up your Facebook and MySpace!”

Although some attorneys have underplayed the importance and usefulness of social media in litigation, this Virginia case is part of a growing trend. The Winter 2010-2011 issue of Journal of Civil Litigation devoted the entire issue to the impact of social media on civil litigation.

James J. O’Keefe and Joshua C. Johnson in “Social Media and Discovery-New Tools, Same Rules” come to the conclusion that “Under both federal and state rules-and at the risk of gross oversimplification-parties are generally entitled to seek discovery of non-privileged information that appears reasonably calculated to lead to admissible evidence.”

In this case, the spoliation was blatant, and was undoubtedly a factor in the amounts of the fines levied against the plaintiff and his attorney. The blogger at Next Generation eDiscovery Law and Tech is of the opinion that, had the attorney instructed his client to put appropriate legal hold procedures in place (including of the Facebook site), there would not have been a reason for the judge to issue sanctions.

Given the litigation trends that have been noted in a variety of articles, it is incumbent on information governance professions to address the use of social media in their organizations as a part of the information governance policy framework. Social media is increasingly a tool for marketing departments and a means of interacting with customers and potential customers.

The legal hold is an effective tool in the information governance structure that allows the attorneys to fulfill their legal obligations and allows records and information management professionals to identify records and information affected by the legal holds. ARMA International’s publication, 7 Steps for Legal Holds of ESI and Other Documents, outlines seven crucial steps to ensure legal holds can be issued and implemented effectively. In short, the steps are:

Step 1: Identify trigger events
Step 2: Analyze the preservation duty
Step 3: Define the scope of the legal hold
Step 4: Implement the legal hold
Step 5: Enforce and examine the effectiveness of the legal hold
Step 6: Modify the legal hold (if necessary)
Step 7: Monitor and remove the legal hold

The publication defines each step in some detail, with particular attention to the considerations that will impact the scope and implementation of legal holds. It is a valuable resource for the legal profession and for RIM professionals who are working with their legal departments in the use of records for litigation purposes. It is available from ARMA International’s Bookstore at www.arma.org/bookstore.

Diane Carlisle

NewsWire