Category Archives: Case Law

November 15, 2011 · 9:10 PM

Facebook Spoliation Costs Lawyer $522,000; Ends His Legal Career

PenaltyIn what many are calling the largest eDiscovery sanction penalty ever leveled directly against an attorney, a Virginia state judge ordered lawyer Matthew Murray to pay $522,000 for instructing his client to remove photos from his Facebook profile, and for his client to pay an additional $180,000 for obeying the instructions. A copy of the final order in Lester v. Allied Concrete Company is available here.

If Murray had initiated a proper legal hold concerning his client’s social media evidence instead of directing blatant spoliation, he would be a lot wealthier and likely kept his job. Instead, he apparently quit his position as managing partner of the largest personal injury firm in Virginia and, according to local press reports, he no longer practices law.

The court’s findings reflect that Murray told his client to remove several photos from his Facebook account on fears that they would prejudice his wrongful death case brought after his spouse’s fatal automobile accident. One of the photos depicts the allegedly distraught widower holding a beer and wearing a t-shirt emblazoned with “I [heart] hot moms.” Murray instructed his client through his assistant to “clean up” his Facebook account. “We do not want blow ups of other pics at trial,” the assistant’s email to Lester said, “so please, please clean up your Facebook and MySpace!”

This case reflects a trend we see based on anecdotal data points where a minority of legal and eDiscovery practitioners have not quite placed social media evidence on the same par as other electronic evidence. For instance, I believe it is highly unlikely that Murray would have instructed his client to delete all his emails or wipe his hard drive, but for some reason he differentiated social media evidence.

The attorneys we speak with are telling us that social media evidence is relevant to nearly every case they handle and the savvy ones are using social media evidence to win their cases. And as we recently noted, since 2010 social media evidence played a key role in 675 different cases with published decisions reflecting such involvement and in presumably tens of thousands more cases not involving published decisions. Those numbers will only increase as social media networks grow even more popular.

However, I was struck by one recent conversation where an eDiscovery consultant had not yet included social media data source in their standard investigation checklist. To be fair, there has not been best practices technology available to enable scalable, mainstream social media eDiscovery until recently, which impacts standard processes.

But just as the Virginia state court judge saw no difference between Facebook postings and other “traditional” electronically stored information, neither should anyone in the legal and investigative fields, especially since the software needed to get the job done is now available.

UPDATE: Here is copy of the previous court ruling determining sanctions were in order. The final order set the amount.

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November 9, 2011 · 11:26 AM

674 Published Cases Involving Social Media Evidence

Many in the legal and eDiscovery field cite the very illuminating research from the Duke Law Journal published in the spring 2011, which, based upon their search of the case law, identified nearly 300 federal court decisions through the end of 2009 that awarded e-discovery sanctions. This survey and others like it reinforce the sentiment that eDiscovery is crucial to nearly all litigation and internal investigation matters.

The work of the Duke Law Journal inspired us to search an online legal database of state and federal court decisions across the United States to identify the number of cases where evidence from social networking sites played a significant role. The numbers were quite an eye opener and exceeded even our high expectations.  From January 1, 2010 through November 1, 2011, 674 state and federal court cases with written decisions available online have involved social media evidence in some capacity.

The search was limited to the top four social networking sites and the tally came out as follows: Myspace (326 cases), Facebook (262), Twitter (49) LinkedIn (37). The numbers excluded results where the social networking site was either named as a party to the case or where such cases were cited as precedent.

Some quick analysis behind the numbers:

  • Sampling review indicates that a significant percentage if not the majority of the Myspace cases generally involved criminal matters.
  • While fewer in number, the Twitter and LinkedIn cases tended to involve higher stakes litigation such as corporate trade secret theft, trade libel, copyright, class action employment matters, and trademark infringement. (See e.g. AGENCE FRANCE PRESSE v. MOREL and Getty Images, In re Application of Chevron Corporation, Blayde v. Harrah’s Entertainment, Inc.)
  • Sampling review also suggests that simple printouts and screen captures or direct testimony of representatives from social media providers in criminal cases were the means used to obtain this evidence.
  • In several dozen cases the court addressed, and in several instances sustained, objections to the evidentiary authentication of social media evidence. This reaffirms that the authentication of social media evidence without best practices technology is a major concern.

This survey of course does not reflect the presumably exponentially more cases involving social media evidence but without a written opinion available online that reflects that involvement. Even so, these numbers are an important data point establishing the ubiquitous nature of social media evidence.

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October 3, 2011 · 7:36 PM

Facebook Evidence Disallowed By Court Due to Lack of “Identifying Characteristics”

There has been a lot of discussion on the recent case of State of Connecticut vs. Eleck, 2011 WL 3278663 (Conn.App. 2011), which highlights the importance of employing best practices technology to collect, preserve and produce social media evidence. In this case, defendant Robert Eleck sought to admit Facebook evidence at trial that would have impeached a prosecution witness, Simone Judway.  Judway denied authorship of the Facebook messages in question, claiming someone must have hacked her account, even though the evidence revealed that the hacking occurred after the subject messages were sent.  The court determined that Eleck, who offered only a simple printout of the Facebook items, failed to adequately authenticate the data, ruling that “it was incumbent on the defendant, as the proponent, to advance other foundational proof to authenticate that the proffered messages did, in fact, come from Judway and not simply from her Facebook account.”

Importantly, the court noted that while the emergence of social media evidence does not necessarily require new rules of evidence, “circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium.”  The court cited precedent cases where emails, chat logs and texts were properly admitted based upon their supporting and unique metadata and other circumstantial evidence that provide “identifying characteristics.” See, e.g. United States v. Siddiqui, 235 F.3d1318, 1322-23 (11th Cir.2000) (e-mails properly authenticated when they included defendant’s e-mail address, the reply function automatically dialed defendant’s e-mail address as sender, messages contained factual details known to defendant, messages included defendant’s 625*625 nickname, and other metadata.) Dickens v. State, 175 Md.App. 231, 927 A.2d 32, 36-38 (2007) (threatening text messages received by victim on cell phone were properly authenticated when circumstantial evidence provided adequate proof message was sent by defendant); In re F.P., 878 A.2d91, 93-95 (Pa.Super.Ct.2005) (instant messages properly authenticated through circumstantial evidence including screen names and context of messages and surrounding circumstances).


State v. Eleck clearly illustrates why it is important to collect and preserve Tweets, Facebook and LinkedIn entries in a thorough manner with best-practices technology specifically designed for litigation purposes.  For instance, there are over twenty unique metadata fields associated with individual Facebook posts and messages. Any one of those entries or a combination of them contrasted with other entries can provide unique circumstantial evidence that can establish foundational proof of authorship. (We identify the nearly two dozen fields of unique Twitter metadata in our social media evidence white paper).

When lawyers and their service providers rely on simple screen captures, printouts or even compliance archiving solutions that fail to collect and preserve all key metadata to admit social media into evidence, they run a significant risk of having key evidence in support of their client’s case disallowed by the court.

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