Eric Goldman details the facts of a case where an attorney told his client to "clean up" his Facebook page (which contained some unflattering photos) during a wrongful death suit, even after the other side requested its contents in discovery.
The scheme was easily detected by opposing counsel, and the lawyer was hit with a $542,000 sanction. (The client was also ordered to pay $180,000 to cover the other side's attorneys' fees for litigating the issue.)
Ultimately, the sanctioned lawyer and his client won an $11 million verdict, and the Court of Appeals recently reinstated the entire verdict. So the lawyer is still coming out way ahead on this case.
But it sort of frustrating to know that a lawyer who is stupid and unethical enough to order his client to tamper with or destroy evidence is taking home a multi-million dollar payday.
I have a slightly different take. Compared to many legal systems, the breadth of discovery in U.S. civil litigation is mind-blowingly (and inappropriately) broad. Let's assume a wrongful death suit involves a claim by a surviving husband for negligent homicide of his wife. I think many in our society would be surprised to hear that the tortfeasor and its lawyers may be able to demand and to read the husband's diary, his emails to his loved ones, his browser history, his facebook posts, etc etc. And they would find this overbroad and distasteful. I guess all I am saying is that I agree with you (and the court) that the lawyer committed wrongdoing warranting sanctions. On the other hand, (1) the client should not be punished for his lawyer's bad judgment and (2) I think your use of the term "destroying evidence" may overstate the issue. Facebook posts = evidence in a wrongful death case? Yeah, maybe. But really? (And, by the way, one cannot really delete anything from Facebook anyhow, as we all should know. As Goldman points out, the defense lawyers got everything anyhow. The entire imbroglio was obviously an expensive side-show.)
ReplyDeleteGood points, Seth.
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