Social media and blogging are quickly becoming areas of focus and concern for employers. In the past, we have encouraged employers to create social media and blogging policies and to be watchful of the content employees are submitting through these avenues, given concerns, among others, about protecting the status of confidential and trade secret information. We also have discussed concerns arising from the potential for use of social media as evidence. See Labor and Employment Law Weekly Update. A recent case shows another risk associated with social media and blogging — the potential waiver of the attorney-client privilege.
Confidential, attorney-client privileged information is generally protected from discovery. However, the privilege can be voluntarily waived by the holder of the privilege when the confidential information is disclosed to third parties. A California court recently faced such disclosure in a case in which the employee, via e-mails, a blog, and Internet chat sessions, disclosed information about her attorneys’ litigation strategy. The statements made during the employee’s use of social media included a statement that her attorneys were “pretty well salivating over getting their teeth into UMG [the employer] again.” The court determined that this statement waived the privilege with respect to information about why the employee brought the lawsuit. In addition, the employee said in a Gmail chat conversation that her attorneys hoped that an opinion in the case would clarify a “cloudy” decision. This statement waived the privilege with respect to the attorneys’ specific legal strategies.
The California court’s ruling is harsh, but the lesson is clear. Employers involved in litigation should limit the number of employees with access to attorney-client privileged information to those with a need to participate in attorney-client communications or with a business need to know the privileged information. Explicitly instruct those employees not to reveal the attorney-client privileged information to third parties, including to third parties via social media or blogging. Employers must remind employees that they should use equal caution and care when engaging in social media or blogging as they would when writing a formal letter. The electronic “record” is easily accessible and rarely capable of being completely expunged once written. Explaining exactly what impact disclosure of this information via social media can have will help to highlight the seriousness of this issue for those with knowledge of the company’s attorney-client privileged information.
The simplest solution to avoiding the loss of the attorney-client privilege through social media or blogging is restraint. Just do not discuss, tweet, post to Facebook, and so forth, information regarding company legal issues. Following this rule is especially prudent given that the Web site itself (Facebook, for example) may actually be considered the “owner” of posted information, with access rights to that information. Arguably, this alone could result in a waiver. Further, while companies may want to provide litigation updates on their Web sites, any litigation-related statements on company Web sites also should be limited so as not to risk waiver.