California Business Litigation Blog

“Spoliation of evidence" is a legal phrase describing the deliberate destruction of evidence that would impact a trial. Although spoliation of evidence is a rare finding in civil cases, it was the finding of a state district judge in Virginia, who imposed fines totaling $522,000 on attorney Matthew Murray. Murray’s client was also fined $180,000 for acting on his lawyer’s advice to break the law. The case, Lester v. Allied Concrete Co., was a wrongful death suit filed on behalf of a bereaved husband.

The court found that Murray grew concerned that pictures Lester had posted on his Facebook account contradicted the pair’s claims in their case. The case was ultimately decided in Lester’s favor and $10 million in damages was awarded to him by a jury.

The deleted photographs came to light when an attorney for the defense managed to view Lester’s Facebook page through a mutual friend’s account. The page contained pictures that presented Lester engaged in various activities. Murray became concerned that some of these photographs, including one of Lester holding a beer and wearing a T-shirt proclaiming his admiration for “hot moms,” might cast doubt on Lester’s claim to be distraught over the loss of his wife. He advised Lester to remove the pictures.

Allied Concrete’s attorney was able to establish in court that Lester deleted the pictures, and the defense was furnished copies of them before the trial. After the trial, the judge ruled that all emails that had been exchanged between Murray and Lester were not protected under attorney-client privilege laws and demanded copies of them.

As a result of the evidence contained in the photographs, the judge decided that Lester was dishonest about his depression and the treatment he was receiving for it. Based on the emails exchanged between Lester and Murray, Lester was also found to have lied to the court about the existence of his Facebook account, and then lied about his attempts to delete it and its contents. In addition, the judge determined that Murray’s actions amounted to spoliation of evidence, and further found that he had attempted to cover his tracks by submitting incomplete evidence and blaming the act on a paralegal. After the ruling, Murray resigned from his law firm.

Continue reading "Judge Rules Deleting Facebook Photos is Tampering with Evidence " »

Although Twitter may have started out as a social networking tool, more and more businesses are using it as a marketing tool. A lot of people have Twitter accounts that they think of as a tool to promote their own careers. Sometimes, in the process of promoting their careers, they may do a little cross-promotion for their employer. After all, if it’s good for the company, it’s good for the employee, usually. “A rising tide lifts all boats,” to quote John F. Kennedy. But if you use your Twitter account to promote your company as well as yourself, then who owns the account?

A current legal case filed with the US District Court in the Northern District of California involving a private individual who used his Twitter account to boost his employer seeks to answer this question. PhoneDog, a mobile products website, is suing its former employee, Noah Kravitz, for $340,000.

PhoneDog says that Kravitz was “given use of” a Twitter account while he worked there, and that he continued to use the account after he left the firm, constituting theft of trade secrets and damage to the PhoneDog’s “business, goodwill, and reputation.”

PhoneDog says that the Twitter account @PhoneDog_Noah was used by Kravitz to “disseminate information and promote PhoneDog's services on behalf of PhoneDog." Kravitz counters that he created the account, linked it to his email address and used it to tweet the things that mattered to him personally, including tweets related to his career and PhoneDog, as well as sports and food, among other subjects.

In fact, says Kravitz, the account wouldn’t work as well if it didn’t combine both personal and career elements. "It's this melding of personal and professional which is why I've gained a modest following," he said in an interview, "Because it's not just the dry headline and link to something."

PhoneDog claims in the lawsuit that it asked Kravitz to drop the account when he left the company. Instead, it claims, he kept the account but changed the handle. Kravitz tells a different story. He says PhoneDog didn’t ask any such thing. Instead, he says, it gave him a green light to keep using the account and even to mention the company. "At no point until July of this year, a good 8 months after we parted ways, did they ask for the twitter account or claim in was their property."

In the lawsuit, PhoneDog claims that Kravitz’ post-employment use of the account is an attempt “…to discredit PhoneDog and destroy the confidence that PhoneDog's users have in PhoneDog."

According to Henry J. Cittone, an intellectual property attorney, the crucial question is going to be whether Kravitz was paid to create the account and to send Tweets. “They said they hired him to create this feed for them. That is the way the company could dislodge a Twitter feed from its owner."

Continue reading "Who Owns Your Twitter Account?" »

According to a study conducted by Plymouth University, teachers in the UK are increasingly becoming the target of cyber bullying at the hands of students and parents. Andy Phippen, who authored the study, questioned nearly 400 teachers earlier this year about their experiences with cyber bullying. He discovered that 35 percent of the teachers in his sample said that they or a colleague had been the victim of cyber bullying perpetrated by students or their parents.

In an interview, Phippen stated, “Everyone acknowledges this is a problem and something needs to be done about it, but schools lack support. It is a sticky area as some of the things posted may not be considered illegal." Furthermore, British schools have not shown much support for teachers who have been targeted. "I heard of one case where a teacher told his employers about the bullying and not only did they tell other members to staff to ignore this teacher, they also suspended him. Their reasoning was ‘there is no smoke without fire’.”

The study's participants reported incidents of cyber bullying ranging from Facebook postings to abusive Tweets. Phippen was particularly disturbed to discover that 26 percent of the bullying was actually committed by parents. One educator who participated in the study had what she called a "mini breakdown" after a year-long campaign of abuse by a parent. “The parental statistics were particularly surprising," said Phippen. "Schools are definitely playing down the severity of the issue, whether it’s because they just don’t realize, or because they don’t know how to deal with it.”

Phippen wants to change that and thinks Britain needs a nationwide support network to address the problem. Although I am not aware of any similar study in the US, it's (unfortunately) a safe bet that it's happening here. In recent years American courts have heard several cases in which students were suing over punishments meted out by schools for mocking or insulting posts made outside of school.

Reports of schools violating NCAA regulations by providing incentives to student athletes are nothing new. Numerous universities have been sanctioned for such violations in recent years, including the University of Miami, Ohio State University and the University of Southern California, among others. The most recent scandal, involving the University of North Carolina, offers a new twist on an old theme, however. The UNC scandal is notable because it was social media that first alerted NCAA officials that something was amiss. Tweets made by a student player on Twitter revealed that he was receiving unsanctioned benefits from the school.

In the NCAA’s Notice of Allegations, UNC was cited for failing to properly monitor the use of social media by student athletes. In response to the NCAA’s unprecedented actions in this case, universities across the nation have taken steps to limit, and in some cases, entirely prevent, athletes’ use of social media. These actions put schools in the precarious position of trying to restrict the First Amendment rights of their student athletes, most of whom are adults.

Some schools have stopped short of forbidding student athletes from using social media altogether, making mandatory monitoring a condition of team membership. Others have ventured even further into shaky legal ground by enforcing a total prohibition on social media use for all student athletes. Because the Supreme Court has made it clear that university students give up none of their First Amendment rights when they enroll, curtailing these rights leaves a university vulnerable to legal action from student athletes. It could be argued that banning student athletes from using social media rises to the level of a prior restraint on speech.

In the event of a legal challenge, universities will be forced to defend themselves in court and may end up paying damages. A more proactive approach might be to put an end to inappropriate incentives for student athletes, rather than taking questionable steps to prevent the athletes from telling anyone they are receiving them.

A special education teacher has been placed on paid administrative leave after a parent discovered he had posted derogatory pictures and comments about his students on Facebook. Jeremy Hollinger, who is employed by the Mobile (Alabama) County Public School system to teach special education at Eichold-Mertz Elementary School, posted the comments and pictures on his public Facebook page.

Celeste Dennis, who saw Hollinger's site, was upset enough to insist her son, a second-grader at Eichold-Mertz, be transferred out of the school. Although she says there were plenty of derogatory comments on the page, including posts about students soiling themselves and eating crayons, she says that one insult hit especially close to home. "It hurt. It genuinely hurt me, said Dennis."My son wears a helmet for seizures during P.E. He had a picture of himself with my son's helmet on making fun of him like that was some type of a joke."

Dennis responded to the cruel postings by reporting Hollinger to the school system and insisting that her son be transferred. The school was slow to take action against Hollinger, however, and he remained in his position at the school until after the incident caught the attention of the press. Initially, the school system refused to explain why Hollinger was still at his post. Nancy Pierce, the school's representative, initially declined to discuss the matter, saying, “Because it's a personnel matter, I can't discuss that with you. The appropriate measures were taken by our Human Resources Department."

However, on Tuesday, October 18, it was revealed that Hollinger had been suspended with pay as a result of the incident. In the meantime, Dennis hopes the suspension becomes permanent. "It takes a special type of person to deal with special children, and he is not that person," said Dennis. "I just want him out of there."

A federal court recently ruled in the infamous Indiana “slumber party lawsuit” we highlighted in 2009 (CLICK HERE). Two female students sued school officials following their respective athletic suspensions for posting sexually suggestive pictures of themselves online. Captured during a summer-break slumber party, the depictions displayed no indication of the subjects' academic or athletic affiliations.

U.S. District Chief Judge Philip P. Simon U.S. District Court for the District of Northern Indiana found in favor of the minor female plaintiffs. Remoteness of the girls' “guilty act” to their respective athletic and academic qualifications was the apparent lynchpin of the court's legal analysis.

The court's legal reasoning relied heavily upon that articulated by the U.S. Supreme Court in its 1969 landmark decision, Tinker v. Des Moines. Tinker involved a legal challenge by two students who were disciplined for wearing black armbands to school as a show of anti-Vietnam sentiment. An absence of any potential disruption within the academic arena was the main factor that clinched the case.

Judge Simon also assigned substantial significance to prior Pennsylvania precedent in the instant action. He cited the grave inherent dangers of permitting public school officials to reach beyond educational boundaries to exert undue influence in extracurricular matters.

In its final analysis, the court also noted the very vague pupil handbook verbiage that prohibits actions that “discredit” or “dishonor” the school or its students. This over breadth was found to be violative of students' Constitutional rights to free expression.

The court repeatedly deemed plaintiffs' postings as obscene absurdities. To its credit, however, it also noted that official sanctions based upon subjective judgments are precisely what First Amendment framers sought to prevent.

ACLU attorney Ken Falk is plaintiffs' legal counsel. Falk expressed personal pleasure with the precedential value of this case for filling an ever-widening legal void in today's high-tech communicative environment. He further posited that the ruling offers all public school officials a valuable lesson by delineating educators' permissible legal boundaries.

Granting youth greater leniency is currently a high-profile subject of hot debate within the Sunshine State. For the last two years, Florida lawmakers have considered a statutory amendment to decriminalize underage sexting. Numerous states are wrestling with this “hot” issue.

As the term implies, sexting is the electronic transmittal of sexually explicit content. Cell phones are the most common instruments chosen by minors for this purpose.

Underage sexting is a felony under existing Florida law (and in most other states as well). Therefore, courts must currently treat youthful sexters in the same manner as large-scale child pornography distributors and other sexual predators. Convicted minors incur permanent criminal records, lifelong compulsory sex offender registration, and concurrent travel and residency restrictions.

A notable example involved an 18-year-old Orlando resident sentenced to five years’ probation and mandatory sex offender registration for life. These harsh consequences resulted from the young man’s decision to e-mail nude pictures of his 16-year-old girlfriend to numerous friends and family members after a lover‘s quarrel.

By contrast, the proposed amendment would relegate minors’ first sexting offenses to misdemeanors. Maximum allowable punishment would be an eight-hour term of community service or a $60.00 fine. Penalties for second and subsequent offenses would escalate from those modest levels. Punishment for adult offenders would remain unaltered.

Bullying, intimidation, and blackmail are common motivations for the crime of sexting. Thus, under the new law, underage sexters would still face separate enhanced sentences for ancillary offenses such as stalking.

Florida Senator Charlie Dean observed that such issues need to nipped in the bud to avoid youthful pranks from becoming full-blown sexual predation by full-grown perpetrators. Dean further opined that the amendment would serve all these ends - without turning kids into criminals.

Ensuring that punishment fits the crime is a widely accepted legal principle of long standing. Whether youth is sufficient mitigation for establishing allowable criminal sanctions is the question of the legislative debate.

Society already acknowledges offender-specific traits as valid criteria in setting the relative severity of criminal sanctions. Courts and legislators have long recognized perpetrator intent and mental capacity as legitimate determinants of relative punitive severity. Thus, the Florida Legislature’s reconsideration of its previous stance that turned “molehills” of youthful indiscretion into mountains of lifelong ramifications is commendable.

HERE is a link to a list of 2011 legislation in 21 states related to sexting.

A federal appeals court has refused to order the reinstatement of a student suspended for cyber bullying. Kara Kowalski was a senior at Musselman High School in West Virginia when she launched her vicious attack against a classmate. Kara’s weapon of destruction was a personalized MySpace page entitled “S.A.S.H.”

At subsequent court hearings, Kara stated that S.A.S.H was an acronym for “Students Against Sluts Herpes.” She went on to allege that another student started a false rumor that the title really represented “Students Against Shay’s Herpes.”

Nonetheless, numerous youth immediately posted images of Shay on S.A.S.H. All of the intentionally altered pictures suggested that Shay had a venereal disease. Shay suffered severe harassment and ostracism as a direct and proximate cause thereof.

When Shay’s parents complained to authorities about this offensive content, school administrator deemed that S.A.S.H. was indeed a “hate website.” Official school policy prohibits cyber bullying. Accordingly, Kara received a five-day disciplinary suspension.

The ensuing litigation posited that this punishment violated Kara’s constitutional rights to due process and free speech.

The court rejected those claims, however. The sole purpose of S.A.S.H. as a forum for defamatory publication and derogatory depictions seems to have been the underlying rationale.

Thus, the Fourth Circuit jurists ruled that school officials did not usurp their legal authority by suspending Kara. Judge Paul V. Neimeyer penned the majority view. In it, he opined that school officials acted appropriately by taking Kara’s callous disregard for a fellow student very seriously.

In addition to being suspended, Kara was prohibited from crowning her successor to the “Queen of Charm” throne. She also lost a cheerleading post.

Ironically, Kara also claimed to have suffered severe depression and social isolation as collateral consequences. The court was apathetic to those assertions, however.

This is a great example of school authorities doing the right thing for the right reasons.

The last paragraph of the Court’s decision says it best: “Rather than respond constructively to the school’s efforts to bring order and provide a lesson following the incident, Kowalski has rejected those efforts and sued school authorities for damages and other relief. Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment. Indeed, school administrators are becoming increasingly alarmed by the phenomenon, and the events in this case are but one example of such bullying and school administrators’ efforts to contain it. Suffice it to hold here that, where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem."

The entire decision may be viewed HERE.

Continue reading "Federal Appeals Court Rules Against High School Cyberbully" »

The American Civil Liberties Union of Indiana has filed a lawsuit on behalf of two students who were suspended from athletic activities after their principal found sexually suggestive photos from a slumber party. In the lawsuit, the ACLU claims that Smith Green Community School Corporation and the Churubusco High School Principal, Mr. Austin Couch violated the students' rights by suspending them for out of school activities. The photos were posted to the student's MySpace pages.

According to the lawsuit documentation, the pictures were taken during a slumber party that occurred during the summer months. The students took photos of themselves kissing and licking a novelty lollipop and pictures of themselves wearing lingerie with dollar bills stuck within the clothing. There was no identification with the photos suggesting that the students attended the high school. The lawsuit states that the students were being humorous and that the actions were "irrelevant" to school functions.

After someone accessed, copied and supplied the photos to the principal, the principal suspended the students from all extracurricular activities for the school year. After parents spoke to the principal, the principal agreed to reduce their suspensions if the students attended several counseling sessions and apologized to the athletic board.

Although the school and principal stated they are unable to comment, they did release a statement stating that the pictures "caused a disruption within our athletic teams at the beginning of this year's sessions." The school states the students did not meet extracurricular expectations.

While the parents appealed the ruling, the students attended the counseling sessions so they could participate in fall activities. They also apologized for their behavior in front of the all male athletic board. The ACLU states that this was humiliating and embarrassing.

The ACLU states that this is only one case, out of many similar cases playing out across the country. The organization claims that private moments like these should stay there and out of school administrator's hands.

The school uses a code of conduct that states that the principal "may exclude any student athlete from representing Churubusco High School if his/her conduct in or out of school reflects discredit upon Churubusco High School or the IHSAA or creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School."

The ACLU is hoping to classify the case as a class action suit, since many parents could be part of it. The lawsuit asks for the district to no longer be allowed to punish students for such behaviors and asks that the incident be expunged from the two student's records.

Continue reading "ACLU Files Lawsuit Over Slumber Party Photos" »