You Are What You Post – The Duty to Preserve Evidence

By David M. Slaby

Our blog has frequently posted warnings regarding written communications with a spouse, child or other family member, etc. resulting in an exhibit used at trial.  These posts have generally warned against communications  written out of anger or emotion, as they may ultimately be harmful if presented to the judge during a trial.  While words said out of anger or emotion can be potentially damaging, words written or said in jest or for fun may be equally damaging.  With so many people actively involved in social media sites such as Twitter, MySpace and Facebook, or internet dating sites, attorneys frequently request information from these sites be produced through the discovery process of divorce cases or custody disputes.  I advise my clients to be mindful of pictures they post of a night out on the town or other social event, and comments that are posted for their friends, because those postings may ultimately be issues in their cases.  Once litigation is pending, clients are prohibited from trying to “clean up” their social media sites prior to producing that information to the opposing attorney.

Once a case is filed or a person makes a decision to commence a legal action, it is strictly prohibited that someone intentionally amend or delete content from any web site.  This action is called spoliation of evidence and it can have dire consequences.  In the case of Lester v. Allied Concrete Co., et al., both the plaintiff and his attorney were ordered to pay hundreds of thousands of dollars for attempting to clean up the plaintiff’s Facebook and MySpace pages after they received a request for social media content in the discovery phase of a wrongful death lawsuit. 80 Va. Cir. 454 (Va. Cir. 2010).  After it was discovered that both the client and the attorney took active steps to clean up the website to hide it from their opponent, the client was sanctioned $180,000 with allegations of perjury forwarded to the local prosecuting attorney – his attorney was sanctioned $542,000 and was referred to the Virginia State Bar regarding allegations of misconduct!

The best way to keep embarrassing or harmful posts on social media sites from being discovered is to not post them in the first place.  It is important to always be mindful that written communications might become the evidence that loses your case.  The biggest question to ask yourself before you write or post something is: “how would this look if this were used as an exhibit in the trial?”  What you write, type or post should always depend on your answer to this question.

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