Attorney Sanctions

As anyone familiar with social media knows, it’s constantly evolving. While it’s a virtual
goldmine of evidence for litigation in today’s world, capturing that evidence in its native format at the moment you need it can be challenging. Platforms change often. Posts are made, edited, and in some cases, deleted in short order. Sometimes, those incriminating posts are unfortunately even deleted at the direction of opposing counsel, as was the case in Allied Concrete v. Lester. With Webpreserver, you can capture valuable evidence at the moment you see it – before opposing counsel causes it to disappear.

  • Allied Concrete v. Lester

    736 S.E.2d 699 (2013):

    Personal injury state in which Lester’s wife was killed in a car accident.  Some of the information on Lester’s Facebook page was harmful to his character, and fearing it could be used to discredit his client, his attorney told him to “clean up” his Facebook and MySpace accounts by deleting insensitive photos in an effort to avoid those photos being used at trial.  Lester deleted the accounts, and his attorney signed discovery responses denying the existence of the accounts. The defense filed for spoilation of the evidence, which the ground granted, resulting in monetary fines for Lester and his attorney.

Regardless of your jurisdiction, the law is clear. As the court in Victor Stanley noted, an attorney who cares about providing the best possible service to your clients, you have a duty to preserve evidence from the moment that you anticipate a lawsuit. The problem is, that much of that evidence, particularly in today’s fast-paced technological world, is found online. Websites, emails, social media postings – All are an evidentiary treasure trove. Equally true, however, is that this evidence is impermanent, easily changed, and quickly altered. As an attorney, it’s your job to capture the evidence you need, when you find it, and in the most effective format for your case. WebPreserver is the solution to make this possible. Browse. Click. Evidence. Simple, efficient, effective.

  • Victor Stanley, Inc. v. Creative Pipe, Inc.

    269 F.R.D. 497, 521 (D. Md. 34 2010):

    The court entered an order granting in part and denying in part plaintiff’s motion for sanctions against defendant for spoliation of electronically stored evidence.  In so doing, the court held that, “The common law imposes the obligation to preserve evidence from the moment that litigation is reasonably anticipated.”

Without question, social media has revolutionized the way we communicate with one another. As many attorneys know, it has also revolutionized the practice of law. At an ever increasing rate, attorneys are gathering evidence from social media and websites. As awareness of the evidentiary value of social media increases, so, unfortunately, does the tendency to try to hide or delete that evidence, as the case of Thurmond v. Bowman clearly shows. As an attorney with a duty to preserve and collect the evidence you need to seek justice for your client, you need to be able to collect that evidence quickly and effectively – before it is deleted or hidden by the opposing side. Outsourcing evidence collection to a third party that charges expensive fees can also cost you valuable time – Time that you can’t afford to waste. With the WebPreserver plug-in, you can capture the evidence at the moment you see it – in a forensically pristine, easily exportable format. Don’t wait another minute to get the evidence you need.

  • Thurmond v. Bowman

    2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016):

    A Fair Housing Act case in which defendants moved for sanctions against Plaintiff for deleting Facebook posts.  Plaintiff responded that posts were not intentionally deleted, but were, rather, “hidden” from public view. Plaintiff produced a printed collection of Facebook posts, which Plaintiff asserted supplied most of the missing posts, but three were still missing.  The court found that those particular missing posts were not relevant, and in this particular case denied defendant’s motion on other grounds, but because the plaintiff did change privacy settings in violation of a court order to maintain the “status quo” of social media accounts, the plaintiff was warned that further such conduct could result in sanctions.

As a busy attorney trying to do the best for your clients, the last thing you want to worry about is being sanctioned. But, as Scott v. Garfield indicates, sanctions are a very real possibility for attorneys who “lose” or fail to effectively collect evidence that would be valuable to their clients. There is always a risk of valuable evidence “disappearing,” but due to the nature of online evidence, the risk is even higher. At WebPreserver, we understand that, and we’ve devised a solution that saves you time, money, and risk. With our easy-to-use plug-in, you can capture valuable evidence at the instant you see it. Capture is quick, easy, and effective, and done from your own computer. No more outsourcing to a third party and waiting for the evidence to be collected and returned, while in the meantime, it may be deleted, altered, or hidden by the other side.

  • Scott v. Garfield

    454 Mass. 790, 798 (2009):

    In which the court held that the doctrine of spoliation permits the imposition of sanctions and remedies where a litigant or its expert negligently or intentionally loses or destroys evidence that the litigant (or expert) knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced.

As any number of holdings like Byrnie in jurisdictions across this country make clear, attorneys have a duty to properly preserve evidence in anticipation of litigation. When the evidence is static and tangible, this is a duty fulfilled through simple diligence. When the evidence in question is online, however, circumstances are different. As those familiar with online evidence know, it can be fleeting in nature. A post that is up one day, can be be deleted the next. A picture that first appears in one format, can be photoshopped to look entirely different almost instantly. This can make the duty to preserve online evidence challenging, and that’s why WebPreserver is here to help. With WebPreserver, you can capture evidence instantly – at the moment you need it, and in an easily authenticated, forensically pristine format. Don’t delay. Give us a call today to see how we might be able to help.

  • Byrnie v. Town of Cromwell, Bd. of Educ.

    243 F.3d 93, 107 (2d Cir. 2001)

    Spoliation is "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)).

At WebPreserver, we understand the tremendous effort, time, and talent that goes into obtaining a successful jury verdict for your clients. We also understand that after expending all of that energy and effort, you would never want that verdict to be put at risk. Unfortunately, that’s exactly what can happen when you delay the production of electronic data, as the Residential Finding holding proves. In some cases, the delay might be intentional, but in others, it may not – it may simply be the result of not having an effective and efficient method to collect that data, and then quickly export it. WebPreserver is the solution to that problem. Install our plug-in on your browser, and gather the evidence you need, when you need it, with no delays. Protect your clients, and their valuable verdicts. Call us today.

  • Residential Finding Corp. v. DeGeorge Financial Corp.

    306 F.3d 99 (2d Cir. 2002):

    In which court remanded a case after entry of a $96.4 million jury verdict when the court found that the prevailing party had delayed, not even destroyed, production of electronic data.

Whether the evidence in your case is a car, or a comment, you have the duty to preserve it if you anticipate its relevance. In this case, Silvestri was sanctioned for failure to preserve a car – and it’s much easier to preserve a car than a comment! Online evidence can be there one moment, and gone the next. When you see it, you need to be able to capture it quickly. With WebPreserver, you can do exactly that – Before it’s deleted or altered forever. Browse. Click. Evidence. Instantly. No waiting for third parties. No risking the loss of valuable evidence. No sanctions in your future. Call us today.

  • Silvestri v. General Motors Corp.

    271 F.3d 583, 590 (4th Cir. 2001):

    A number of courts have issued rulings imposing a duty to preserve before litigation begins if a party knows of the existence of a potential claim and can identify relevant evidence. In this particular case, court upheld sanctions for failure to preserve a car involved in an accident, which plaintiff reasonably should have known would be material evidence in anticipated litigation against auto manufacturer.

In the case of In re Ethicon, Inc., the court expounded in depth about the duty to preserve electronically stored information under Federal Rule 37(e). Increasingly, courts are relying upon Rule 37(e) to dismiss actions for failure to preserve evidence, to sanction attorneys for failing to identify and preserve relevant evidence, and to presume that any information not presented was unfavorable to the party who failed to present it. Don’t find yourself in this situation. If you believe that evidence might be relevant, don’t risk losing it. Collect it easily and efficiently, with our WebPreserver plug-in. Call us today.

  • In re Ethicon, Inc.

    No. 2:12-cv-497, 2016 WL 5869448, at *3 (S.D.W. Va. Oct. 6, 2016):  

    Holding discussing duty to preserve evidence and noting that:

    Federal Rule 37(e): Governs a court's spoliation analysis concerning electronically stored information ("ESI"). Amended effective December 1, 2015, the relatively new formulation of the rule provides in whole: If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or(C) dismiss the action or enter a default judgment.

Serving a global client base of Law Firms, Investigators, eDiscovery Firms, Law Enforcement Agencies, Insurance Providers, and the legal counsel of corporations, WebPreserver Software Inc. is a privately-held firm that is owned and managed by a successful team of software veterans. Our aim is to make eDiscovery easy and efficient by providing the highest standards of admissible legal evidence, technology and customer satisfaction.

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