Facebook– Avoid–It will Eventually Come to Haunt You

Seriously. Because 800million people in the world are “ON” Facebook– does that make it a good thing? Who the hell cares if you have 1mill “friends?”
Why do we want to know who got drunk, who OD’s, who crashed their car, went to the store, bought new shoes, blah blah blah?  A dad shoots his kid’s laptop after getting mad, and posts that video to Facebook himself, finding daughter posted “private” denigrating post about him or parents, and having to do too many chores?  When kids get on facebook, you will have a very hard time getting them off since it’s the thing kids like to do. Nearly 50% of 18-24yr olds check “Facebook” every single morning.

We are sure that ARs are on there, because they have no brains. Just beliefs. We bet the Peta attorney for “Orcas” is on there. Sucker for a buck.

The only possible use of Facebook that we could see is commercialism, to advertise a business, and even then, most attorneys are not in favor of it.  Why? Although many businesses are “on” Facebook, in general, Facebook is not considered a professional site, nor is it considered as credible for many businesses. And the so called “privacy” aspects that allegedly allow people to “hide” their personal crap?  Well what if a software malfunction caused your personal stuff to be submitted to the public, or such personal stuff became public somehow?  You know Facebook can’t control everything– and then the legal arguments start.

Here’s a great example of how Facebook (again) cost people not only $$ but far more………….not written by us, we saw this on another blog at http://ellblog.com/?p=2778

Attorneys Beware – Attempting to Erase the Past on Facebook Can Result in Costly Sanctions

Jan 6, 2012
Authored By: Melissa L. DiPasquale

Citation: Lester v. Allied Concrete Co., Nos. CL.08-150, CL09-223 (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011)Employee/Employer Implicated: Counsel; Paralegal; Client; Employee

e-Lesson Learned: When a demand for discovery requests the contents of a party’s Facebook account, purposefully deactivating or deleting information to avoid responding to the demand can result in costly sanctions against both the party and their counsel. To delete or not to delete – that is the question Facebook users and their counsel must carefully contemplate when responding to eDiscovery requests.  Making the wrong decision can be costly for users and their counsel as was the case in Lester v. Allied Concrete Co.  In Lester, when served with a demand for the contents of his Facebook page, the actions of plaintiff and his attorney resulted in the Virginia Circuit Court of the City of Charlottesville imposing substantial monetary sanctions against both the plaintiff and his attorney.

In Lester, Isaiah Lester sued Allied Concrete Company and William Donald Sprouse seeking monetary damages for negligence and wrongful death.  Throughout the lawsuit, continuous disputes arose over discovery related issues.  Specifically, defendants sought the production of screen print copies of Lester’s Facebook account, including all of his pictures, message board, status updates, and messages sent or received.  Defendants attached to their request a photo of Lester holding a beer can while wearing a t-shirt with the logo “I ♥ hot moms,” which Lester’s counsel presumed was taken from his Facebook account.

After receiving the demand, Lester’s counsel instructed his paralegal to advise Lester to “clean up” his Facebook because “we don’t want blowups of this stuff at trial,” and the paralegal sent two emails to Lester instructing him accordingly.  Lester’s attorney then formulated the following scheme: Because the request sought production of screen print copies “on the day this request is signed,” Lester’s attorney rationalized that if Lester deactivated the account prior to signing the responses, then there would be nothing to produce.Lester deactivated his account, a fact he later denied at his deposition and during trial, despite evidence that clearly demonstrated that he knew those statements to be false.  Lester provided his responses one day after the deactivation, answering the request “I do not have a Facebook page on the date this is signed, April 15, 2009.”

Defendants then filed a Motion to Compel Discovery.  After consulting with another attorney, Plaintiff’s counsel had his paralegal instruct Lester to reactivate his account.  Lester did so, but following his earlier instructions from his counsel, he deleted sixteen photos while his counsel’s paralegal was printing the screens.  Both his attorney and paralegal claim that they were unaware that the photos were deleted at the time they prepared their amended response.

Defendants filed a Motion for Sanctions for Plaintiff’s Spoliation of Evidence.  At the November 22, 2010 hearing, the defendants’ expert, using Facebook’s IP logs provided by Lester’s attorney, testified that spoliation transpired and that Lester had deleted the photos.  Lester, through his counsel, admitted that there had been spoliation.   On December 6, 2010, the Court found that there had been spoliation of evidence by Lester and ordered that an adverse inference be given at trial regarding the spoliation and that Lester and his attorney would remain subject to further findings of fact and possible sanctions at a future date.

After the December 7-9, 2010 trial, the jury awarded more than $8 million dollars to Lester.  Both parties filed post trial motions, including defendants’ Motions for Monetary Sanctions against plaintiff and his counsel addressing, in part, the failure of plaintiff’s counsel to respond to theSubpoena Duces Tecum previously served on his paralegal requesting any and all emails between the paralegal and Lester for a defined period of time. By Order dated February 4, 2011, the Court compelled that the entry of the jury verdict be deferred and the plaintiff’s counsel produce all emails for an in camera inspection and all previously subpoenaed documents that plaintiff previously claimed to be privileged.

Plaintiff’s counsel produced the initial Privilege Log and the Enhanced Privilege Log (ordered by the Court after finding the first log was inadequate) – yet both logs failed to include an email the paralegal sent to Lester.  The Court found that Lester’s counsel intentionally omitted the email and then tried to blame the omission on the mistake of his paralegal. On September 1, 2011, the Court granted defendants’ Motion for Monetary Sanctions against both Lester and his counsel.  The Court found that Lester engaged in the spoliation of evidence citing the fact that he deactivated his account and claimed he didn’t have an account in his original “misleading response,” deleted the sixteen photos, and lied at his deposition and at trial, claiming that he never deactivated his page or deleted the photos.

The Court further found that Lester’s counsel violated several Virginia rules by obstructing the production of documents by drafting a deceptive response and instructing his client to deactivate his Facebook account; by signing the responses containing the statement that Lester didn’t have a Facebook as of April 15, 2009; and by failing to include an email on multiple privilege logs, by failing to produce the email for an in camera review, and by falsely reporting that the omission was a member of his support staff’s when it was really his own.

The Court sanctioned both individuals to pay reasonable expenses, including attorney fees incurred by defendant, totaling $722,000.00 of which Lester is responsible for the sum of $180,000.00 and his counsel is responsible for the sum of $542,000.00.  The Court referred ethics-based allegations against Lester’s counsel to the Virginia State Bar and the matters relating to Lester’s perjury to the Commonwealth’s Attorney for the City of Charlottesville.

Lester exemplifies that, contrary to popular belief, deleting information from a Facebook account does not protect the user and instead the deletion may cost users and their attorneys more in the end!  Before hitting the delete button, Facebook users and their counsel should carefully consider the potential implications of their actions when responding to a demand for discovery.

Melissa L. DiPasquale, an attorney at Durkin & Durkin, LLP, practices in the areas of commercial litigation, transactional law, and collections and foreclosure law.  Ms. DiPasquale is a graduate of Seton Hall University School of Law, 2008, and The College of New Jersey, BS – magna cum laude, 2005.  Ms. DiPasquale is licensed to practice law in the State of New Jersey, the State of New York, and the District Court for the District of New Jersey.  

————————————————————————————————————-PD Note: If Lester had never been on Facebook and had never posted any pictures or anything else, his attorney would never have to consider it. Pictures these days and bad information, things that are not even private but could make one appear to be something else, can come back to haunt anyone, and who knows what might happen in the future.

You don’t need to be an attorney to know that Facebook ruins lives, it contributes to detrimental situations in family law, labor law, legal cases, jury cases, you name it. It causes people to sink their own ship. It creases LIABILITY galore. When privacy is ended, WILLINGLY, we see the people who have less intelligence seem to GRAVITATE toward it. That is likely because they think it is harmless. This is incorrect. ((Facebook is a defense attorney’s helper–IF the Plaintiff or Plaintiff’s attorney is stupid enough to be on Facebook. However if you represent the defendant and he/she was dumb enough to be on there, then it would not be much of a help to defense counsel, but obviously a liability.))

There is no way on earth that Facebook can be harmless. Facebook is one of the worst things out there, and children that become addicted to it, adults that become addicted to it, are legion.  Only one aspect of Facebook, the Jerry Springer, Montel W. type issues– can bring BAD acts to the surface. For example, pictures of people getting intoxicated can ruin a custody case. Data on a young girl who was doing “respite” work for special needs kids indicated she claimed she was a horndog, and was seeing some guy more than twice her age (who had just got out of prison, with 15 felony counts) and yes-THAT was posted on Facebook. Needless to say, if the agency who hired her had checked “Facebook” they could have not hired her? So Facebook is basically useful for dirt digging.

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