The story about the over $900,000 in monetary sanctions requested by the defendant’s attorneys against a widower and his formerly well-respected attorney in a multi-million dollar wrongful death trial, due to spoilation of Facebook evidence and subsequent perjury, has been covered in numerous blawgs, including Above the Law and The Empowered Paralegal, but I just want to say a very few words about it from a paralegal perspective.
First, note that the formerly well-respected attorney falsely blamed his paralegal for telling the allegedly grieving widower to “clean up” his Facebook page, which showed him wearing a t-shirt announcing he loved hot moms and holding a beer can. If you’re not the judgmental type, there’s probably nothing wrong with holding a beer and wearing a hot moms shirt, but if that’s already posted on Facebook, you can’t hide that picture in discovery.
Getting blamed for the huge mistake that led to the jaw-dropping request for sanctions could not have been fun for the paralegal. I’m not sure an apology would be sufficient for this level of false finger-pointing by a supervising attorney. I’d sure like to ask her directly how she feels about it now.
Note that the formerly well-respected attorney came up with the lame and ultimately unsuccessful idea to deactivate his client’s Facebook account in order not to disclose it in discovery on his own.
Second, don’t send an email to any client telling him or her to alter and/or deactivate a social media account. Any instructions regarding clients’ social media accounts should come directly from the attorney, even if you have to draft a letter for his signature. On second thought, it’s probably not a great idea to have written evidence of those kind of shady communications in the first place.
A paralegal can gather information regarding a client’s social media accounts, and also search for any accounts not disclosed, but all that information, especially if it’s likely harmful, should be given to the attorney to address with the client and in discovery responses.
Clients should also be told at the beginning of the firm’s representation not to post anything further to their social media accounts without checking with their attorney first. Which is the same as saying do not post anything further to the account(s) until the matter in litigation has been resolved.
Don’t make one of the biggest mistakes a paralegal did not make in this case.
Source: The Hook