Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
Telling a Client to Clean Up His Facebook Page Earn Court Sanctions
November 30, 2011
The title refers to a recent wrongful death case where an attorney was sanctioned for telling a client to clean up his Facebook page because "we don't want blowups of this stuff at trial." He also instructed his client to deactivate the account. It's a squirrelly story worth reading, involving a husband who didn't appear to be distraught over his wife's demise – drinking, wearing a lusty "I love hot moms" tee shirt and the like.
Here's what prompted me to write about it. The case was discussed in one of the online groups I belong to and one attorney actually suggested it would be malpractice NOT to advise the client to clean up his Facebook page and deactivate the account as long as no discovery requests had been received.
As inconceivable as might seem, there are still many attorneys who do not understand litigation holds, when they attach and what they mean. The deliberate instruction to spoliate evidence in an ongoing case absolutely warranted the sanctions which were awarded. But it is obvious that we still have a long way to go to educate lawyers who don't understand that it is not discovery requests that trigger a litigation hold but knowing that a lawsuit exists or reasonably anticipating that one will be filed.
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