Thursday, July 11, 2013

Don't spoil the evidence by altering or deleting your social media.

Don't delete your Facebook photos if you file a lawsuit related to the content of those pictures. 

A Virginia lawyer just paid off the sanctions imposed on him in 2011 for helping his client "clean up" a Facebook page by deleting 16 pictures showing the client doing stupid things. The Virginia state court imposed over $700,000 in sanctions on the lawyer while awarding several million to his client on the underlying claim (so, the client won, but the lawyer lost most of his fees otherwise earned in the case).

The concept is called "spoliation of evidence." It simply requires that a litigant preserve the status quo, and covers all manner of documents, electronic data and social media.  For example, in a breach of contract case you should not destroy or alter letters, memos or e-mails about the contract.  Even normal archiving and destruction of business information must be frozen during the lawsuit. This is a huge trap for the unwary.  Large entities have "litigation hold" procedures that are followed.  But small and mid-sized companies who are not as litigation saavy often fail to get word out to all employees.

Consider, for a moment, the vast quantity of data on your personal and company Twitter, Facebook, Linkedin, and Tumblr accounts, in addition to personal and business texts, e-mails, phone logs and all their back up files.

Courts deem it very, very unfair to the judicial process when one litigant destroys evidence, and thus alters the evidentiary landscape. It creates a side-show to the main case, and can result in orders limiting issues and damages, in addition to imposition of costly sanctions on the responsible parties and lawyers. 

More importantly, every case requires that we deal with bad evidence, and ill-conceived memos and letters.  Business people do not live to litigate, and behave as normal folks who write angry e-mails and letters that may cut against their legal interests. Experienced civil litigation lawyers know this is common, and we are well equipped to handle the less-than-perfect case. 

Let us litigate the main case for you, not the costly sideshow.