"Spoliation of evidence" refers to the deliberate destruction of evidence prior to a trial. It is a rare event in civil litgation. But, spoliation of evidence was found in a case involving a personal inury lawyer in Virginia. Lawyer Matthew Murray was ordered to pay $522,000 for instructing his client ro remove photos from his Facebook age. His client was ordered to pay $180,00 for obeying his instructions. A state distruct judge issued these sanctions in the case of Lester v. Allied Concrete Co., a wrongful death lawsuit. See blog report here.
Mr. Murray has apparently resigned from his firm and quit the practice of law. I am sure a sanction of $522,000 will do that. Mr. Murray told his client to remove pictures, such as the one of him holding a beer and wearing a t-shirt that said "I [heart] hot moms." The client was a recent widower suing about the death of his wife.
In this case, the defendant was able to show via expert testimony that the widower deleted 15 photo from his Facebook account and perhaps a 16th. See Court’s opinion. The photos were provided to the defendant later, before the trial. The jury found in favor of Mr. Lester and awarded $10 million. Subsequent to the trial, the judge ordered that Plaintiff’s counsel provide copies of emails between the lawyer and his client to the court for in camera inspection (ie, for the judge’s eyes only). When the district judge ordered production of these emails, he ruled that emails related to Defendant’s request for production were not attorney-client privileged.
This all started when one of the defense lawyers "hacked" into Mr. Lester’s Facebook page via a mutual friend and observed the photos showing Mr. lester as apparently non too distraught over his wife’s death.
The court found that the plaintiff, Isaiah Lester, lied about his depression and treatment. The court found that Mr. Murray told Mr. Lester via email "to clean up" his Facebook page and told the client that "blow-ups" of pictures like the "I [heart] hot moms" photo would cause problems at trial. Mr. Lester deactivated his Facebook age. A few days later, in responding to discovery requests, the plaintiff said he did not have a Facebook account. The defendants complained – at this point they knew Mr. Lester had or should have a FB account. Mr. Murray then asked Mr. Lester to reactivate his account. The plaintiff’s lawyer also provided hard copies of the 16 photos to the defense.
At his subsequent deposition, Mr. Lester lied about what he had done and denied he had deactivated his Facebook account.
Defendants then issued a supboena duces tecum for emails between Lester and his lawyer for the time period when the request for production was issued. Plaintiff resisted. The defense then filed a motion to compel. The court required a privilege log of the disputed emails. The judge found the initial privilege log deficient. When Mr. Murray finally produced the incriminating email, he claimed its prior omission was error. He blamed the omission on a paralegal.
As many politicians have learned, it is not the initial lie that gets you into trouble. It is the cover-up. Mr. Murry would have been far better off if he had simply taken his medicine early on and avoid any deception.