Plaintiff and its attorney sanctioned for Facebook spoliation (but multi-million dollar verdict upheld) – Lester v. Allied Concrete, 2013 Va. LEXIS 8 (Jan. 10, 2013)

In these combined appeals, Virginia Supreme Court confirmed the trial court’s decision to deny a new trial based on the misconduct by plaintiff and its attorney. The Court reversed the trial court’s order of remittur, though.

The most interesting part of the case for us is the sanctions to plaintiff  and to plaintiff’s counsel for spoliation of evidence contained in plaintiff’s facebook page.

The Plaintiff (“Lester”) had sued Allied Concrete, for his wife’s wrongful death and obtained a jury’s verdict of more than 6 million in compensatory damages for economic and non-economic losses. The judge had then ordered a remittur curtailed the verdict to about 2 million.

Subsequently, Allied Concrete filed multiple post-trial motions, including motions for sanctions against Lester and its attorney (“Murray”), “arguing that Lester conspired with Murray to intentionally and improperly destroy evidence related to Lester’s Facebook account and provided false information and testimony related to his Facebook page, his prior use of anti-depressants, his medical history, and the spoliation of Facebook evidence. Further, Allied Concrete contended that Murray engaged in deception, misconduct, and spoliation related to Lester’s Facebook account”.

After Allied Concrete issued a discovery request to Murray, seeking production of screen print copies of all pages from Lester’s Facebook page, Murray “instructed Marlina Smith (“Smith”), a paralegal, to tell Lester to “clean up” his Facebook page because “[w]e don’t want any blow-ups of this stuff at trial.”

The trial court held that “Allied Concrete was entitled to sanctions against Lester and Murray. After a further hearing on the matter, the trial court sanctioned Murray in the amount of $542,000 and Lester in the amount of $180,000 to cover Allied Concrete’s attorney’s fees and costs in addressing and defending against the misconduct”.

The full text is available at http://www.courts.state…

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