Required reading for lawyers: Social Networking Sites and the Ethical Issues They Create, by Thomas A. Gilligan, Jr.
A trial verdict of $6,227,000 to the decedent's husband in a wrongful death action arising from a truck accident in Virginia was challenged based in part on allegations of discovery violations related to the cleansing of the plaintiff's Facebook account of unflattering photographs. The Virginia Lawyers Weekly blog has just updated the story, with an account of the trial court's post judgment decision reducing the verdict to $2.1 million in a 32 page order.
A few choice quotes from the order:
During the course of their discussion, Murray questioned how the Defendants had obtained the "1 [heart] .. hot moms photo." Smith said she thought the photo likely came from Facebook. Smith accessed Lester's Facebook page, and after seeing Facebook photo, Murray instructed Smith to tell Lester to "clean up" his Facebook because "we don't want blowups of this stuff at trial."
. . . .
Following Murray's instructions, Smith emailed Lester at 9:54 a.m. and 3:49 p.m. on March 26,2009. The first email requested information from Lester to answer the interrogatory seeking the identities ofthe individuals in the "I .. hot moms" photo. After informing Lester that the "I [heart] .. hot moms photo" was on his Facebook page, Smith stated there are "some other pics that should be deleted." The second email exhorted Lester to "clean up" his Facebook page because "we do NOT want blow ups of other pics at trial so please, please clean up your facebook and myspace!"
. . . .
Murray intentionally omitted from the Privilege Log and the Enhanced Privilege Log the March 26,2009,9.54 a.m. email from Smith to Lester and willfully failed to deliver it to the Court for in camera inspection. Murray concealed the email from the Court out offear that the Court would grant yet another continuance ofthe trial, scheduled to begin on December 7, 2010.
. . . .
After the trial, Murray furnished the March 26,2009,9:54 a.m. email to the Court on December 14, 2010. In his letter oftransmittal, Murray falsely represented to the Court that the omission of this now notorious email was caused by the mistake of a paralegal then employed by the Allen Firm, when, in fact, Murray knew his own misconduct caused the omission.
. . . .
92. Murray's conduct at trial included a number of actions designed to inflame the passions and play upon the sympathy of the jury. These actions include the following:
a. Weeping during opening statement and closing argument. b. Stating on two occasions to the jury, in one form or another, that defendant David Sprouse, the driver of the truck, "killed" the plaintiff;
. . .
c. Violating a pre-trial ruling from this Court by exclaiming in the jury's presence that the Defendants had asserted that Lester was contributorily negligent in causing his wife's death; . . .
d. Repeatedly invoking the name of God or religion by referring to the Plaintiff as one who attends church with his parents and by four times mentioning prayer. . . .
93. Significantly, with the exception of~ 92 c., above, at no time did defense counsel object to any of the above-described behavior
. . . .
Both Lester and Murray must be held accountable for the spoliation. Lester did what Murray told him to do, deliberately delete Facebook photos that were responsive to a pending discovery request. Defendants are entitled to sanctions against Murray and Lester for the spoliation that occurred on May 11,2009, as previously ordered.
. . . .
Contributing substantially to the jury's excessive verdict was Murray's actions geared toward inflaming the jury. As witnessed by the Court, and detailed in ~ 92 above, Murray, injected passion and prejudice into the trial, shouting objections and breaking into tears when addressing the jury. Most of Murray's actions in this respect were suffered without objections from defense counsel, who focused their defense upon the denial of liability (despite Defendant Sprouse's admission to having pled guilty to manslaughter in connection with the accident, . . . and upon aggressive, but obviously ineffectual, attacks upon Lester's credibility and character. This defense strategy produced the extreme opposite of its desired effect, serving to create additional passion and sympathy for Lester and anger towards the Defendants.
As a result, the trial court remitted $4,127,000 of the $6,227,000 awarded to the decedent's husband as beneficiary, leaving him with an award of $2,100,000, adjusted for interest, as beneficiary of his wife's estate. The husband had also recevied a verdict for his own personal injuuries of $2,350,000, and the trial court stated that his award will stand without modification. Thus, even after the remittur, the husband's total recovery was $4,450,000. An award of $1,000,000 to the parents of the decedent was also not disturbed.
The trial court will hold another hearing as to the amount of sanctions to be assessed against the husband and his attorney, and stated that it will refer certain matters to the Virginia State Bar.
All in all, even after the remittitur, this was still a huge plaintiffs' verdict in Virginia.
DRI's online newsletter, E-Discovery Connection, vol 5, issue 3, has a number of worthwhile articles on discovery of information on social networking sites. I like the case where a federal judge offered to do an in camera review of a party's Facebook account by "friending" the party. Think about whether you would want a federal judge reviewing all of your Facebook pages, which would include things you didn't even write.
The following cases are among those discussed in that newsletter:
LA Times published an article about how insurers are searching social networking sites to uncover fraud. (Hat tip to the Kaiser Health News Network). This is a common enough theme these days, but what is different is that some insurers supposedly are actually making claims decisions based on what they find on social media like Facebook or Myspace. I'm wondering if insurers subscribe to social medial search services, such as Spokeo. I find it hard to believe that claims adjusters are separately visiting each social media website to run a variety of searches.