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In response, the plaintiff’s lawyer instructed his


paralegal to tell the plaintiff to clean up his Facebook page and, later, to delete it. The plaintiff deactivated the account, and his lawyer submitted a discovery response stating “I do not have a Facebook page on the date this is signed, April 15, 2009.” The defendant filed a motion to compel discovery, and in response the plaintiff’s lawyer had the plaintiff reactivate the account. The plaintiff did so, but deleted about 16 questionable photos before turning access over to his attorney, who printed screen shots and submitted them to opposing counsel. The plaintiff would later testify that he deleted the photos without the knowledge of his lawyer. Those photos, with the exception of one, were recovered and turned over before trial. As punishment, the trial court sanctioned the


plaintiff in the amount of $180,000, and the plaintiff’s attorney in the amount of $542,000. Further, the court permitted disclosure at trial of each of the deleted photographs, and gave a curative instruction: “[you] should presume that the photograph or photographs he deleted from his Facebook account were harmful to his case.” These actions were all upheld by the Supreme Court of Virginia. Additionally, the defense requested a remittitur on the verdict—the jury awarded $6,227,000 for plaintiff’s


wrongful death claim. The judge granted the request, cutting the award down to $2,100,000. There is no evidence that the judge considered the plaintiff’s discovery misconduct, but it certainly didn’t help. What’s the take-home message? Be careful. Take


caution when talking to clients about their Facebook accounts. Make sure they do not “friend” or send messages to opposing counsel or strangers. Social media is meant to be dynamic—it is


constantly changing, with new information being added regularly, and information occasionally being deleted or changed. Though Maryland courts have not examined the issue, I suspect that counseling a client to delete questionable posts or photographs, or to deactivate a social media account, might be good lawyering—with one caveat. Before deletion, exact copies should be made in the event a discovery request is made by opposing counsel and ordered by a judge.6 Also, it is important to know beforehand what social media is recoverable when deleted or deactivated. Facebook users, for example, can often reactivate accounts or access deleted material. The main lesson from Lester is that litigants and their lawyers must be upfront with opposing counsel and the courts.


6 Most social media discovery requests should be opposed. Trial Reporter / Winter 2014 43


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