Compliance &Ethics - Society of Corporate Compliance and Ethics

Compliance & Ethics Professional May/June 2012However, “There can be very serious penaltiesfor the destruction of evidence at a timethat you know that the social media evidencewill be relevant for some kind of a lawsuit orinvestigation,” says Wright. A Virginia lawyerand his client found this out the hard way.Isaiah Lester was suing Allied Concretefor the alleged wrongful death of his wife,Jessica, who died when an Allied Concretetruck rolled onto her car. His lawyer, MatthewMurray, instructed Lester to “clean up” hissocial media profiles, which contained materialthat cast doubt on Lester’s level of grief.Lester deleted 16 photos from his Facebookprofile, including images of him partying,holding a beer, and wearing a t-shirtthat read “I [heart] hot moms.” The deletioncame to light in the course of the trial, andof the 16 photos deleted, 15 were retrievedand presented in court. There were seriousconsequences. The court found that the deletionof the photos constituted misconduct byLester and Murray, and awarded a total of$722,000 to Allied Concrete for attorney fees—$180,000 to be paid by Lester and $542,000from Murray, who has since resigned.Company social media sites are morestraightforward. “If a company is maintainingits own social media page related to its productsand resources, information on the socialmedia page should be preserved when thereis a reasonable threat of litigation, assumingsuch information is related to the litigation,”says Shwayri. When it comes to personal socialmedia pages, however, evidence preservationcan be more complicated. “Given the millionsof users of social media, it is not reasonable toexpect social media sites to archive all informationrelated to users just in case of a lawsuit,”says Shwayri. “Most users probably don’tarchive their own material because the materialis held by third-party sites.”While the case law is still developingsurrounding social media evidence, its potentialeffect on an investigation, and even ourbehavior, is becoming clear. “At a very philosophicallevel… [social media] creates a greateraccountability to one another and to society,”says Wright, “because, in fact, we’re all ableto watch one another and we all know thatanything I say or do tonight can come back tohaunt me tomorrow.” ✵1. Gartner: Social Media Governance: An Ounce of Prevention.December 17, 2010. The report can be ordered at www.gartner.com/DisplayDocument?ref=clientFriendlyUrl&id=14989162. Gartner press release: “Gartner says by year-end 2013, half of allcompanies will have been asked to produce material from socialmedia websites for E-discovery.” February 17, 2011. Available atwww.gartner.com/it/page.jsp?id=1550715Dawn Lomer is a Corporate Journalist with i-Sight Software in Ottawa,Canada. She may be reached at dlomer@i-sight.com.68 www.corporatecompliance.org +1 952 933 4977 or 888 277 4977