Legal community seeks rules to curb digital shredding
Canadian lawyers can rest easy knowing the courts here won’t typically use attorneys to prove a point, as is occasionally the case in other jurisdictions. Just ask an American lawyer who was served with a rude awakening to the tune of US$542,000.
Last October, a Virginia judge slapped lawyer Matthew Murray with one of the largest e-discovery sanctions levied to date for advising his client to take down Facebook photos.
“The reason is quite simple. In the U.S., judges are elected and they tend to be a bit populist,” says Dominic Jaar, KPMG’s National Leader of Information Management and E-Discovery. It was a startling twist in a lawsuit that spawned a massive US$8.6 million wrongful-death award. The judge also took away US$4.1 million from Murray’s client, Isaiah Lester, whose wife was killed when a truck rolled on to her car in 2007. On top of that, Lester was forced to pay an additional US$180,000 fee.
The words Murray wishes he could rescind: “We don’t want blowups of this stuff at trial,” he told his assistant, referring mostly to a photo that showed Lester holding a beer can and a T-shirt emblazoned with “I (heart) hot moms”.
Sanctions of that magnitude for spoliation of evidence haven’t surfaced yet in Canada. It’s unlikely they ever will, even as it becomes more challenging to preserve evidence as social media proliferates. The obvious ethical implications of telling a client to destroy or conceal records keep lawyers in check.
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Source: The Lawyers Weekly
By: Anwar Ali
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