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Issue: April 2011

Ethics Corner

Federal Court Finds Waiver of Attorney-Client Privilege Stemming from Social Media Use

A recent decision from the Northern District of California, Lenz v. Universal Music Corp. , No. 07 Civ. 03783, 2010 WL 4789099 (N.D.Cal. Nov. 17, 2010), highlights the importance of instructing and reminding clients not to discuss their legal matters on Facebook, blogs, or other social media. In Lenz, the district court upheld the magistrate’s decision to compel production of attorney-client communications because the client had discussed the communications in emails and instant chats with family and friends, in blog postings, and with the media.

In true 21st century fashion, the underlying controversy also stemmed from the use of social media. Plaintiff Stephanie Lenz had posted a 29-second video of her toddler dancing to the song “Let’s Go Crazy” (by the artist Prince) on YouTube. Universal Music Corp., the copyright owner for the song, sent You Tube a take-down notice alleging that the video infringed on its copyright. After You Tube complied with the request, Lenz, who is represented by the Electronic Frontier Foundation (“EFF”), sued Universal, alleging that Universal knowingly and materially misrepresented in its takedown notice that the video infringed on its copyright, a violation of the Digital Millennium Copyright Act.

Prior to retaining counsel, as well as during the litigation, Lenz discussed her conversations with counsel in emails, electronic chats, blog posts, and media interviews. For example, in emails, Lenz stated that EFF was “very, very interested in the case,” and that “EFF is pretty well salivating over getting their teeth into [Universal Music Group] yet again.” In others, she stated that EFF was planning a “publicity blitz and/or a lawsuit against Universal.” In electronic chats, she discussed the legal strategy in dropping her state law claims, as well as her attorneys’ opinions about why Universal had sent the notice. In speaking with a reporter, Lenz stated that “[i]n discussing the situation with one of the EFF lawyers, we came to the conclusion that I did not infringe the copyright and eventually we decided to file this lawsuit.”

On the basis of these statements and others like them, the Court found that Lenz had waived the attorney-client privilege and that Universal was entitled to discovery of attorney-client communications related to Lenz’s motivations for pursuing litigation, the legal strategy, and certain factual issues.

While the court’s decision itself is unremarkable in so far as it found a waiver of the attorney-client privilege, it serves as an important reminder to counsel to warn clients not to discuss attorney-client communications in emails, blogs, Facebook, Twitter, or other social media. As a practice point, an attorney would do well to periodically reemphasize the point as well. As this case highlights, a careless client (or attorney) can open up a minefield of evidence to the opposing party.

Ethics Corner is a regular contribution by the Section’s Ethics and Professional Responsibility Committee .

Justin M. Swartz is a partner at Outten & Golden LLP, www.outtengolden.com , and Co-Chair of its Class Action Practice Group. He has represented employees in class action discrimination and wage/hour cases, as well as individual discrimination cases and other employment matters, since 1998.

Cara E. Greene is an associate at Outten & Golden LLP, www.outtengolden.com , where she represents employees in litigation and negotiation in all areas of employment law, including disability, pregnancy, and family responsibilities discrimination; class actions; and executive and professional contracts and compensation. She is a member of the ABA LEL Ethics and Professional Responsibility Committee and is Plaintiff’s Co-Chair of the Complex Litigation sub-committee of the Employment Rights and Responsibilities Committee.

American Bar Association Section of Labor and Employment Law
321 N Clark | Chicago, IL 60654 | (312) 988-5813