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Think Twice Before You Delete: How "Cleaning-Up" Your Internet Presence During or Pending Litigation Can "Clean-Out" Your Bank Account

As if the lasting effects of your digital footprint were not deterrent enough, the possibility you could be destroying evidence and subjecting yourself to hundreds of thousands of dollars in fines if you delete material during existing or probable litigation should cause you pause before posting questionable material on social media outlets.

Ohio Courts recognize civil claims for destruction of evidence, or what is commonly referred to as "spoliation" of evidence. You are guilty of destruction of evidence if:

1. There is pending or probable litigation;

2. You have knowledge that the litigation exists or is probable;

3. You willfully destroy evidence designed to disrupt the opposing party's case;

4. The destruction does in fact cause disruption; and

5. You cause damage by your destructive acts.

While the concept of destroying evidence is far from new (think: fleeing assailant throwing a smoking gun into the Atlantic), cases involving deleting or "cleaning-up" content from your social media sites have emerged in recent years. Arguably, the most famous digital spoliation case involved Isaiah Lester and his "hot moms" t-shirt.

On June 21, 2007, Isaiah Lester was driving his wife Jessica to work when a loaded concrete truck struck their vehicle. As a result, Jessica suffered injuries that ultimately proved to be fatal. Lester, as Administrator and beneficiary of Jessica's estate, filed a civil action against the concrete company seeking damages for economic and noneconomic losses, including mental anguish, for the wrongful death of Jessica.

During the ongoing litigation, opposing counsel discovered a picture of Lester on his Facebook profile. The picture depicted Lester with a group of others, holding a beer can and wearing a t-shirt that said: I ♥ hot moms. Worried that opposing counsel would find more pictures that would paint Lester in an unsympathetic light to the jury, Lester's attorney instructed Lester to "clean-up" his Facebook to ensure pictures like the hot moms t-shirt would not be "blown up" at trial. Lester's "clean-up" involved deactivating his account and informing opposing counsel it no longer existed.

Upon the motions of opposing counsel, the trial court held that Lester's actions amounted to spoliation of evidence and ordered Lester and his attorney to pay sanctions in excess of $700,000.

The Lester case illustrates two important takeaways regarding digital spoliation. First, be careful what you post on social media. Your pictures, posts, likes, tweets, snaps, etc. are creating your digital image and reputation. In any matter where your character is in question, your opponent will be looking for material that can paint you in a less than optimal light.

Second, once you know that you are likely to be or already involved in litigation, avoid the temptation to delete and destroy your social media profiles. Although hiding unfavorable information from your opponent can be tempting, destroying digital evidence can cost you in the long run.

Jennifer R. Roberts is an attorney in Coolidge Wall's Business/Criminal Litigation Department. For more information on this topic, or for any other legal needs, please contact her at roberts@coollaw.com.

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