Virginia: Car Crash – a Lawyer’s Censure

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On September 1, 2011, a 32-page Order was entered in a car accident suit pending in Circuit Court for Charlottesville, Virginia. The consolidated personal injury and wrongful death cases are Lester v. Allied Concrete Co., No. CL08-150 c/w CL09-223.

The Lester auto accident litigation marquees the increasing importance of “social media” in personal injury and wrongful death matters. Plaintiff’s Facebook page became a discovery and post-trial battleground.

Plaintiff’s lawyer in Lester was found to have violated statute, rules and ethics and sanctioned for having his client delete Facebook photographs previously requested in discovery, for withholding related email from in camera inspection, and for misrepresenting information to the Court. The vehicle accident victim himself was found guilty of deactivating his Facebook and deleting its photos after discovery was requested and of making misrepresentation about the same and other facts; and was referred for criminal prosecution for perjury.

The Judge in Lester declared that “attorney-client privilege” and “work product doctrine” were inapplicable to the evidentiary spoliation and other misconduct. Finally, the Judge reduced Plaintiff’s damages award for the wrongful death of his wife by vehicle collision from $6,227,000.00 to $2,100,000.00 in what had been one of the largest Virginia jury verdicts in 2010.