Time and again, defendant corporations find themselves settling cases at inflated valuations simply to avoid the costs to preserve, review and produce substantial amounts of electronically stored information (ESI). In contrast, individual plaintiffs with very few documents to produce, if any, have been sitting back and relaxing throughout discovery.
This is changing as defendants increasingly use social media to turn the tables on plaintiffs. A well-known example involved the surviving husband in a wrongful death case in Virginia who shared a picture of himself on Facebook in which he was drinking a beer and wearing a t-shirt that read “I ♥ Hot Moms.” His attorney instructed him to delete this picture, but not before it was spotted and retained by defense counsel, ultimately resulting in an adverse inference instruction to the jury and a fine of more than $700,000. Allied Concrete v. Lester, 285 Va. 295, 302 (2013).
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