Cleaning Up Facebook Leads to Sanctions

In a previous post I noted this admonition from an analysis by H. Christopher Boehning and Daniel J. Toal of  a recent article published in the Delaware Law Review, in which attorney Margaret DiBianca ” identified a number of these novel ethical issues:

Upon learning that a client’s social networking site contains information that is potentially harmful to a claim or defense, a lawyer may be tempted to advise the client to remove the harmful content. To do so, however, would risk running afoul of Rule 3.4 (a), and incurring sanctions for spoliation of evidence.

Failure to heed that warning (although the events recounted here likely occurred before the warning appeared in the article) has indeed lead to significant sanctions for an attorney (and the attorney’s client) who directed his paralegal to direct his client to “clean up” his Facebook page. The sanctions? Well, they totaled $722,000 (to be paid presumably out of a $5,000,000 judgment the client had obtain against the defendant in the proceeding in which the sanctions were issued. Here’s more:

”According to a September 1 order from Judge Hogshire, the spoliation began in March 25, 2009, when Murray received a discovery request for the contents of Lester’s Facebook account. Attached was a photo of Lester wearing a ‘I [heart] hot moms” t-shirt, and holding a beer can with other young adults.
Murray instructed a paralegal to tell Lester to ”clean up” his Facebook page because, ”we don’t want blowups of this stuff at trial,” the assistant, Marlina Smith, said in a disposition. She emailed that message to Lester the next day.
On March 26, 2009, according to the judge’s order, Murray came up with a scheme to take down or deactivate Lester’s Facebook account so that he could respond that he has no Facebook page on the date the discovery request was signed.
When defense attorneys filed a motion to compel, Murray instructed Lester to reactivate the account. But in a December 16 2009, deposition, Lester denied deactivating the account.
Murray is also accused of withholding the email from Smith instructing Lester to clean up his Facebook page when he was ordered to produce it shortly before the trial began. Murray falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

The rest is here from JDJournal.com, but this is enough to bring me to the second point of this story that is worthy of comment:

 “Murray [the attorney] falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

On second thought, it is probably not in need of comment as it seems to speak volumes all by itself.

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2 Comments

  • I know you said your post is not in need of comment, but sheesh, why does the paralegal always get blamed? 😮

  • Sharon Mork says:

    Paralegals are told and taught in all the courses and articles that paralegals are under the direct supervision of an attorney, and that every decision is ultimately the attorney’s decision. But attorneys seem to always blame the paralegal when something goes wrong. It would be nice if judges would reprimand any attorney who even dares to try to shift the blame somewhere else! Thank you, though, for the article, it was enlightening.

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