On October 22, 2010, an American magistrate judge ruled that a plaintiff suing Universal Music Corp. for improperly sending a takedown notice under the Digital Millennium Copyright Act (DMCA) waived a number of heads of attorney-client privilege by discussing the details of her legal case by email and on a blog.
In Lenz. v. Universal Music Corp, the plaintiff claimed damages and attorneys' fees as a result of Universal Music Corp.'s filing of an allegedly fraudulent DMCA take-down notice seeking to have a home video of the plaintiff's child dancing to a copyrighted song removed from YouTube.
A magistrate judge ruled that plaintiff Stephanie Lenz waived attorney-client privilege by discussing her case in e-mail, on her blog, and in chat sessions. Through these online media, Lenz made representations about conversations she had had with her attorneys from Electronic Frontier Foundation (a non-profit digital rights advocacy and legal organization). These representations revealed information such as why she was suing Universal Music Corp. and legal strategies she was pursuing in her suit against the company. The magistrate judge ruled that these online communications amounted to a waiver of the attorney-client privilege. Accordingly, the magistrate ordered plaintiff to produce further documents and submit to further discovery regarding the plaintiff’s communications with her attorney as to (i) her motives for bringing the action; (ii) the specific legal strategies identified in her online discussions; and (iii) the specific factual allegations made in her online discussions.
However, some have indicated that had this case been heard in Canada, the result may have been very different. Due to the high thresholds established by caselaw for determining when privilege has been waived, it is argued that a plaintiff's mere musings or speculation about her lawyer's legal strategy would likely not have lead to a waiver of solicitor-client privilege.
The concern around communications usually focuses on the lawyer's communications and the risk of these communications compromising the case. In this case, it is interesting that it is the litigant’s communications that are the basis for the waiver of a privilege claim. In light of the pervasiveness of online media, this case underscores the importance of reminding clients to not discuss their cases with anyone, in any form, except with their lawyers. In addition to prejudicing an ongoing case, this decision is also an example of how imprudent use of online communications can unnecessarily distract a court from considering the merits a litigation (in this case, copyright infringement, the defence of fair use, DMCA take-down notices, etc.), thereby depleting the judiciary’s and clients’ resources.