The Journal of American Law is a peer-reviewed journal and the only one of its kind in the country. The Journal is a law review focused on important legal issues ranging from complex litigation to Supreme Court rulings.
Issue link: http://journaloflaw.epubxp.com/i/477043
Spring 2015 // Journal of American Law 15 never deactivated his account. Te defendant hired a computer expert, who determined that the plaintif indeed had deleted 16 photos from the account. Te defendant's counsel served a sub- poena duces tecum on the plaintif 's paralegal seeking all emails between her and the plaintif. Te court ordered plaintif 's coun- sel to produce a privilege log. Te plaintif 's counsel intentionally omitted from the log any reference to the email instructing the plaintif to clean up his Facebook page. 49 Upon learning about the plaintif 's counsel's conduct, the trial court decided that the defendant was entitled to sanctions against the plaintif 's attorney and his paralegal to cover the defendant's costs in defending against the misconduct. Te sanctions against the attorney and paralegal were $542,000 and $180,000, respectively. 50 Te plaintif 's attorney, once the vice president of the Virginia Trial Lawyers Association, also agreed to a fve-year suspension for violating rules of candor to the tri- bunal, fairness to opposing counsel, and misconduct. 51 Te conduct in Allied Concrete is an example of egregious behavior, but parties also face penalties for failure to preserve even when spoliation is unintentional. Gatto v. United Air Lines Inc. is one example. 52 In that case, the plaintif airport worker brought suit against the defendant commercial airline for injuries stemming from an alleged workplace accident. Te defendant sought discovery related to the plaintif 's Facebook account, be- lieving it contained photos that contradicted the plaintif 's claims about the seriousness of his injury. Te court ordered the plain- tif to execute an authorization for the release of documents and information from the Facebook account. Te plaintif agreed to share his password with the defendant's counsel. 53 Te defendant's counsel used the password to access the account. Soon aferwards, the plaintif deactivated his account because he received a notice from Facebook that someone had accessed his account from an unknown location. Facebook sub- sequently deleted the account automatically two weeks afer the deactivation. Both the plaintif 's counsel and defendant's coun- sel apparently were unaware of the deactivation until it was too late to recover the account. 54 Te defendant brought a motion for a spoliation instruc- tion regarding the social media evidence. Te plaintif argued that the destruction was unintentional and that his conduct fell short of actual suppression. Te court granted the defendant's motion. 55 Te court reasoned that as long as the evidence was relevant, the ofending party's culpability was irrelevant. 56 Even 49 Id. at 702-03 50 Id. at 703. 51 Virginia State Bar, In the Matter of Matthew B. Murray, VSB Docket Nos. 11-070-088405 and 11-070-088422. 52 Gatto v. United Airlines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D. N.J. Mar. 25, 2013). 53 Id. at *1. 54 Id. at *2. 55 Id. at *5. 56 Id. at *4. if the plaintif had not intended to deprive the defendant of the information, the court reasoned that the defendant was still prejudiced because it had lost access to evidence that was po- tentially relevant to the plaintif 's damages and credibility. 57 Terefore, the court granted the defendant's request that the court provide an adverse inference instruction to the jury at trial. Tese e-discovery perils are avoidable with proper plan- ning. Lawyers have a responsibility to see that clients preserve relevant evidence. However, as the court noted in Zubulake v. UBS Warburg LLC, 58 "A lawyer cannot be obliged to monitor her client like a parent watching a child." At some point, the client is responsible for a failure to preserve evidence. Never- theless, counsel must play an active and ongoing role in preser- vation. Once there is an anticipation of litigation, counsel must issue a litigation hold. Te lawyer should send preservation letters to inform individuals of their responsibility to preserve information that might be relevant to the anticipated litiga- tion. Te attorney should reissue litigation holds over time to remind document custodians of their responsibility. Tis does not mean that the client must preserve absolutely everything. Te rules of discovery include concepts of reasonableness and proportionality. 59 Sending preservation letters to the opposing party or third parties also may prove useful. Te party or witness may not be particularly tech savvy and might be unaware of the possi- bility that electronic evidence could be lost through inaction. Sending a letter helps to educate others on electronically stored information (ESI) and their responsibilities. It makes it more likely that the evidence will be preserved for formal discovery. If the opposing side does fail to preserve relevant evidence, a preservation letter may be a helpful exhibit when moving for a spoliation instruction. Striking the Right Balance Attorneys must vigorously represent their clients' interests. However, lawyers must temper their zeal with restraint. Law- yers must balance their duty to provide efective representa- tion with principles of truthfulness and fairness. In a sense, the ethical challenges of social media evidence are nothing new. Attorneys always have faced ethical quandaries involving evi- dence. Technology makes many things in life easier and more convenient. It also makes it easier and more tempting to violate ethical rules. Attorneys cannot overlook the opportunities and dangers this class of evidence presents. Tose who arm them- selves with knowledge of the rules and follow developments in technology will beneft from this medium. Tose who shut their eyes to it do so at their own risk. 57 Id. 58 Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 433-34 (S.D.N.Y. 2004). 59 Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182, 192 (S.D.N.Y. 2012). Te court explained that Federal Rule of Civil Procedure 26(b)(2)(C) contains a proportionality principle. Te court must limit discovery if the "burden or expense of the proposed discov- ery outweighs the likely beneft."