Social Media: Threats to Confidential and Privileged Communications

Vol. 16 No. 9

By

Carla R. Walworth is a partner and Mor Wetzler is an associate with Paul Hastings in New York, NY. Ms. Walworth may be reached at carlawalworth@paulhastings.com, and Ms. Wetzler may be reached at morwetzler@paulhastings.com.

Technology has recently transformed communications between lawyers and their clients and poses unique problems for preserving the attorney-client privilege, the work product doctrine, and lawyers’ ethical duty to maintain client confidences.

To protect privileged communications with their clients, attorneys must take reasonable steps to avoid inadvertent waiver through disclosure to third parties. In the context of social media, attorneys must understand the technology in order to avoid inadvertent waiver. In addition, a lawyer’s ethical duty to maintain client confidences requires that a lawyer must warn the client of the risk of sending or receiving emailed communications where there is a “significant risk” that a third party may gain access. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 11-459 (2011).

Social media sites provide a potential forum to waive the privilege through public disclosure of confidential information. With increasing frequency, litigants and even government investigators are turning to social media websites for evidence. Courts have addressed whether a person can ever have a reasonable expectation of privacy in communications posted on social media websites, and whether such postings automatically waive the confidentiality of an otherwise privileged communication.

Recent decisions indicate that communications made over social networking sites are not confidential. In a case addressing the confidentiality of social media, a Pennsylvania court ordered a personal injury plaintiff to allow opposing counsel access to his password-protected Facebook and MySpace accounts to investigate whether information on those sites contradicted his claims. The court stated that absent an applicable privilege, nearly any relevant materials were discoverable, and because operators of Facebook and MySpace had complete access to all site content, there could be no expectation of privacy in communications made on such forums.

Using social media websites to discuss privileged communications also raises a danger of waiver. In Lenz v. Universal Music Corp., No. 5:07-03783, 2010 U.S. Dist. LEXIS 125874 (N.D. Cal. Nov. 17, 2011), a California court found that the plaintiff in a copyright infringement suit had waived the attorney-client privilege through emails to third parties and blog posts regarding conversations with counsel. Plaintiff had sued Universal Music Corporation, claiming that Universal knowingly misrepresented that a video plaintiff posted on YouTube infringed Universal’s copyright in a song. Before and after filing her claims, plaintiff visited several online chat rooms and blogs where she discussed conversations she had with counsel regarding her motivation for filing suit. Universal discovered the postings and argued that, in making them, plaintiff waived the attorney-client privilege. The court held that because the communications related to the substance of plaintiff’s conversations with counsel, plaintiff had waived the privilege.

Parties also might be unable to rely on websites’ privacy restrictions to protect communications. In Largent v. Reed, No. 2009-1823 (Pa. Comm. Pls. Nov. 7, 2011), personal injury plaintiff Largent alleged serious and permanent physical and mental injuries resulting from an accident. Defendant Reed wanted access to Largent’s Facebook page (which she recently changed to “private”), claiming that Largent had posted several photographs showing her enjoying life with her family and a status update about going to the gym. Largent refused, claiming that by making her Facebook page “private,” she had a reasonable expectation of privacy in the information she posted there. The court disagreed, admonished Largent for attempting to hide relevant facts behind a “private” Facebook page, and held that everything on the page must be disclosed. “By definition, there can be little privacy on a social networking website,” the judge explained. “Facebook’s foremost purpose is to ‘help you connect and share with the people in your life.’ That can only be accomplished by sharing information with others. Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

These cases emphasize that parties who wish to maintain the confidentiality of a communication should not post related information online. Although social media websites such as Facebook may designate certain aspects of a user’s account private, courts could find that users who post on these sites have no reasonable expectation of privacy in their postings. While one can imagine a situation in which the outcome could be different, this would be a fact-specific inquiry based on the particular attributes and use of the technology—an ever-shifting arena. Because confidentiality is paramount to the attorney-client privilege, clients who wish to preserve the privilege should beware the risks of social media.

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