Facebook and Litigation are a Bad Mix

Dear Readers, Previously, I have warned about Facebook and how important a weapon it has become in litigation. A recent case from Charlottesville, Virginia, illustrated this point (for the plaintiff and his attorney) with painful clarity.

Isaiah Lester and Jessica Lester, his wife of less than two (2) years, were driving along a road in Charlottesville. They were run into by a cement truck and Jessica was killed. The driver and his cement company were sued for her death and the injuries suffered by Isaiah.

Mr. Lester hired a prominent Charlottesville plaintiff's attorney who was actually a past-President of the State Bar to sue on his behalf and his wife's estate; Jessica's parents, Gary and Jeannine Scott, had their own attorney representing them for their separate claim under Virginia law. The driver and the cement company initially claimed that Mr. Lester was partially negligent, but dropped that contention prior to trial.

During the course of the litigation, the parties engaged in something called "discovery," which is where each side are required to answer questions and provide documents as requested by the other side. The defense attorneys had come to believe that Lester had a Facebook page where some questionable pictures were posted. One of them showed Lester partying, holding a can a beer, wearing a with a garter belt on his head, and a "I [love] hot moms" T-shirt. This was about two years after his wife was killed in the wreck.

The defense attorneys, having gotten wind of this, asked Lester about his Facebook site and also asked for a copy of it. From the court documents I read, I cannot tell why, but evidently Lester's attorney thought this picture (and others) was potentially harmful. Upon receiving the request, Lester's attorney asked him to "clean up" this Facebook page. In fact, he "deactivated it." Thus, he was able to truthfully, but deceptively, reply that he had no Facebook account at the time of answering the discovery responses.

Over a year later, Lester's attorneys turned over his Facebook profile information. Unfortunately, by that time, Lester had actually deleted his pictures, including the one of him with the beer can and garter belt was not turned over. A computer expert was able to recover 15 of the 16 pictures, the beer can one probably being the missing 16th picture.

Going to trial, this allowed for the defense to obtain a jury instruction about something called "spoilation of evidence." This meant the jury was told that because of Lester's and his attorney's shenanigans with his Facebook account, a jury was told that the information must have been harmful to Lester. Not a very good thing. Lester also has to pay reasonable attorney's expenses for litigating the Facebook account and the trial judge is referring his trial testimony to the local prosecutor for possible perjury charges. Really not a good thing.

Lester's attorney, though, has even worse problems, even as a past-President of the Virginia State Bar. Not only will he be ordered to pay reasonable expenses along with Lester, but the judge is referring him to the State Bar for possible disbarment.

All of this is why I advise my clients to be very careful about what goes on their social network pages. Maybe you cannot control what was previously on it, but you can certainly control future posts.

Oh, and I forgot to mention that Lester prevailed at trial. He was awarded $6,277,000.00 as the beneficiary of his wife's estate (reduced to $2.1 million by the judge for other reasons) and $2,350,000.00 for his own pain and suffering.

So, all this anguish over the Facebook account was probably a waste of energy, since it seems to have had no impact on the jury. This means that Lester and his attorney tried to hide social media activity, with no benefit and that one or both of them may land in jail for doing so.

View the verdict of this case!

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor.