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Preserve challenged ads/social media posts after receiving a C&D or risk sanctions

13 August 2018

From Rebecca Tushnet’s 43(B)log:

A spoliation/false advertising issue.  “While Defendants produced some social media documents, the production did not include Facebook or Twitter posts relating to the illicit products identified in the complaint.” For a finding of spoliation, a party must show that “(1) the party with control over the evidence had an obligation to preserve it at the time of destruction; (2) the evidence was destroyed with a ‘culpable state of mind’; and (3) the evidence was relevant to the party’s claim or defense.”

After plaintiff’s demand letter and complaint, which identified the products and ads at issue, defendants had an obligation to preserve relevant posts on their social media sites.  There was evidence of a culpable mental state, where a deponent responded to a question about whether the deleted posts had anything to do with this lawsuit, with “It’s possible. Actually, it was — I think it had more to do with any copycat companies, law firms like yours trying to file the same frivolous lawsuit.” When asked about deleting posts related to marketing one of the products at issue, he responded, “I have the right to do whatever I want to do with my Facebook account, regardless of a lawsuit or not.” His declaration that no posts were deleted intentionally for purposes of litigation/post-filing was inconsistent with his deposition testimony and unsupported by evidence. Destruction after notice/negligence is sufficent to be culpable.

Link to the rest at Rebecca Tushnet’s 43(B)log

As the OP says, this case involves a legal principle called spoliation (not spoilation, but if spoilation were a word, it might mean about the same thing).

Here’s a definition:

Spoliation is the destruction or alteration of a document that destroys its value as evidence in a legal proceeding. Soliation often carries an inference of intentional destruction in order to avoid negative implications associated with evidence.

The term is pronounced SPO liation  – The first syllable rhymes with go and the second part is pronounced like the ending of pronunciation.

When some people are accused of wrongdoing, their first impulse is to attempt to destroy all evidence that they might have done something wrong.

PG warns this is a bad idea for a couple of reasons:

  1. It makes the person look very guilty of the claimed wrongdoing.
  2. The destruction or alteration can be a crime all by itself under federal law and state law in the United States separate and apart from the bad conduct spoliation attempts to cover up.

Some large organizations have detailed procedures to avoid having their employees intentionally or inadvertently alter or destroy potential evidence. Corporate legal departments have form spoliation letters and emails for use with employees, contractors, vendors, etc., etc.

Digital records have made the avoidance of spoliation far more complex. For someone with a guilty conscience, the temptation to hit the delete button is overwhelming.

Without getting into the weeds, PG cautions that delete commands often remove the file from an individual’s computer display without actually removing the underlying information from all sorts of other places where it may reside. Computer forensics experts are hired for their skill in locating deleted information in such places.

As the OP describes, social media and online discussion forums can be a happy hunting ground for evidence of guilt and inflammatory remarks that can make a defendant look like a jerk or a criminal. Yes, you can be forced to provide your ID and password.

PG suspects most attorneys warn their clients not to destroy or hide anything at the first hint of any potential claim or litigation.

UPDATE:

Here’s an example of a letter designed to prevent spoliation of evidence:

Please be advised that you and your clients, John Jones and Jane Doe, are under a legal duty to maintain, preserve, retain, protect, and not destroy any and all documents and data, both electronic and hard copy, that may be relevant to Ps claims as set forth in the Complaint. The failure to preserve and retain the electronic data and evidence outlined in this notice may constitute spoliation of evidence which will subject you to legal claims for damages and/or evidentiary and monetary sanctions.

For purposes of this notice, electronic data or electronic evidence shall include, but not be limited to, all text files (including word processing documents), presentation files ( such as PowerPoint), financial data, spread sheets, e-mail files and information concerning e-mail files (including logs of e-mail history and usage, header information, and deleted files), Internet history files and preferences, graphical files in any format, databases, calendar and scheduling information, task lists, voice mail, instant messaging and other electronic communications, telephone logs, contact managers, computer system activity logs, and all file fragments, internet usage files, offline storage or information stored on removable media or storage media, information contained on laptops, or other portable devices, network access information and backup files containing electronic data or electronic evidence.

Specifically, you are instructed not to destroy, disable, erase, encrypt, alter, or otherwise make unavailable any electronic data and/or evidence relevant to the Plaintiffs claims, and you are further instructed to take reasonable efforts to preserve such data and/or evidence. To meet this burden, you are instructed by way of example and not limitation, to:

  • Preserve all data storage backup files (i.e., not overwrite any previously existing backups);
  • Preserve and retain all electronic data generated or received by employees who may have personal knowledge of the facts involved in the claims against the Defendants as set forth in the Complaint;
  • Refrain from operating, removing or altering, fixed or external drives and media attached to any workstations or laptops, voice mail systems, and cell phones, copy machines that are reasonably thought to have data related to the claims, including but not limited to the workstations and/or laptops used by John Jones and Jane Doe;
  • Preserve and retain all data from servers and networking equipment logging network access activity and system authentication;
  • Preserve and retain all electronic data in any format, media, or location relating to the claims, including data on hard drives, hard disks, floppy disks, zip drives, CD-ROMs, CD-RWs, DVDs, backup tapes, PDAs, cell phones, smart phones, memory cards/sticks, or digital copiers or facsimile machines;
  • Prevent employees from deleting or overwriting any electronic data related to the Plaintiffs claims; and
  • Take such other security measures, including, but not limited to, restricting physical and electronic access to all electronically stored data directly or indirectly related to the Plaintiff s claims.

To facilitate the retrieval of said data, be advised that a forensic accounting firm will be retained to, in addition to reviewing the requisite documentation, forensically acquire the hard drives and other media that may contain electronic data related to the action.

Legal Stuff, Social Media

2 Comments to “Preserve challenged ads/social media posts after receiving a C&D or risk sanctions”

  1. “To facilitate the retrieval of said data, be advised that a forensic accounting firm will be retained to, in addition to reviewing the requisite documentation, forensically acquire the hard drives and other media that may contain electronic data related to the action.”

    And for most people/companies, having ‘all’ your electronic data ‘taken’ can close you down. (No wonder some writers stick to pen and paper, after your data’s been collected you go out and buy a new box of notebooks and pens and you’re back in business. 😉 )

  2. There’s only so much I’ll do to protect myself from hypotheticals. I pretty much delete everything that comes in on email and text within a week. If I don’t need it as a receipt or proof of purchase, you can be assured it’s not going to make it to a hypothetical trial. Some things are just worth the risk. Keeping the digital clutter down on my devices is one of those things.

    I go so far as to delete any forum posts I’ve made a couple of times a year. It’s a bit weird, but it makes me feel better not to have the past hanging over me. Generally, I’m not on social media, so I don’t have to deal with that.

    On the other hand, anything *obviously* problematic does get saved. I’m not a total idiot. 😉

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