How a “Stink Bomb” E-Mail and Its Proof That Facebook Pictures Were Deleted Might Have Blown Up a $10.6 Million Verdict

Parties in all types of cases often post pictures and messages on Facebook that might be detrimental to their cases. After his wife died tragically in an automobile accident, and he brought a wrongful death case, Isaiah Lester did just that when he posted a photo of himself wearing an “I [love] hot moms” t-shirt and garter belt on his head while he had a beer in hand. That was his first bad choice.

The defense attorneys, who represented the driver of the vehicle and his employer, saw the picture and requested similar pictures and screen shots from Lester’s Facebook account. The next day, Lester’s attorney, Matthew B. Murray (who is the Virginia Trial Lawyers Association’s immediate past-president), allegedly instructed his paralegal to advise Lester to delete some Facebook pictures. Lester, however, purportedly informed Murray that he had deleted his Facebook account. Clearly, these actions reflect additional unwise decisions. Defense attorneys are now challenging the $10.6 million verdict, which may be the state’s largest wrongful death case.

What was even more egregious according to defense counsel, however, was that Murray denied that Lester had a Facebook account on two specific dates on which he in fact did. They further contend that to add insult to injury, Murray denied up until the time of trial that he dictated any alteration of the Facebook account. Defense attorneys also contend that if the misrepresentations made to the court and opposing counsel were not sufficiently disconcerting, that Murray then deliberately withheld evidence, namely, a “stink bomb” e-mail reflecting that indeed, Murray had essentially directed his client to delete pictures from his Facebook page. Lester and Murray were also accused of other improprieties.

Ultimately, defense counsel proposed to the court there possible solutions: (1) dismiss Lester’s claim and enter a verdict in favor of the defendants; (2) throw out Lester’s claim, set aside the verdict and allow a new trial, which would limit Lester’s recovery of damages and prohibit Murray or his firm from representing Lester; or (3) reduce the verdict to $2.2 million or $1.1 million and preclude Lester’s attorney or the firm from collecting any contingent fees. A hearing regarding this issue will be held on September 23, 2011.

Murray has reportedly since retired from the practice of law and resigned from his firm on July 6, 2011. It is unclear if any ethical or disciplinary proceedings will follow. But suffice it to say that while attorneys should advise their clients not to post potentially damning photographs or messages to social media websites, they should be wary of the consequences of advising their clients to delete or alter such information — particularly when it is the subject of a discovery request. Indeed, that may be an obvious and prudent course of action for most attorneys. At least one attorney, however, failed to answer the clue phone on that issue.

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