Why Social Media Evidence Spoliation Leads To 5-Year Suspension For Former Managing Partner
by Julia Romero Peter, Esq.
Recently, Charlottesville, Virginia lawyer Matthew Murray agreed to have his attorney license suspended for 5 years. The suspension comes in the aftermath of a court order sanctioning Murray for spoliation of social media evidence to the tune of $542,000 in Lester v. Allied Concrete Co. (Va. Cir. Ct.) In that case, Murray represented plaintiff Isaiah Lester in a wrongful death lawsuit resulting from the death of his wife in an automobile accident.
Defendants requested screenshots of Lester’s Facebook account, including photos, status updates and sent and received messages. In their request, Defendants attached a picture of Lester wearing a t-shirt saying “I ♥ hot moms”, holding a beer can in the company of others. According to court documents, Murray told his paralegal to instruct Lester to “clean up” his account, reasoning “we don’t want blowups of this stuff at trial.” Court documents further state, “Instead of providing what was sought, Murray created a scheme to take down or deactivate Lester’s Facebook page and to respond by stating that Lester had no Facebook page as of the date the response was signed.” Following Murray’s instruction, Lester deactivated his Facebook account.
The next day, Murray submitted Plaintiff’s responses, in which Lester stated, “I do not have a Facebook page on the date” he signed the responses. In response, Defendants filed a motion to compel discovery. Murray consulted with another attorney regarding the motion to compel. The attorney pointed out the January 1, 2009 addendum to Rule 4:9 of the Rules of the Supreme Court of Virginia covering e-discovery.
In response to Defendants’ motion to compel, Lester reactivated his account. Following Murray’s previous instructions, he also deleted 16 pictures. In his subsequent deposition and at trial, Lester testified that he had “never deactivated” his Facebook account. His e-mails and subsequent testimony indicate he knew this was false.
Murray also made misrepresentations with respect to the e-mail from his paralegal to Lester instructing him to delete certain pictures.
The court found that both plaintiff and counsel were “accountable for the spoliation. Lester did what Murray told him to do, deliberately delete Facebook photos that were responsive to a pending discovery request.” The court ordered Lester to pay $180,000 and Murray $542,000.
