Client Waives AC Privilege via Emails, Chats & Blogs … Oh My!

by Nick Brestoff, M.S., J.D.

How ironic. You’d think that attorneys at Electronic Frontier Foundation (“EFF”) would draw the line at letting a client talk about her conversations with her counsel to the point where the attorney-client privilege was held to have been waived.

But in Lenz v. Universal Music Group, No. 07-03787-JF (N.D.Cal. Oct. 22, 2010), that’s what happened. Plaintiff Stephanie Lenz, represented by attorneys at EFF, had sued Universal Music Group (UMG), alleging that UMG had harmed her First Amendment free speech rights when UMG issued a notice to YouTube demanding that it “take down” a 29 second video of Lenz’s toddler dancing to Prince’s “Let’s Go Crazy.”

While the lawsuit was pending, Lenz used e-mails, Gmail Chat, and a personal blog to repeatedly discuss her conversations with her attorney about the case. For example, she said that the lawsuit was an opportunity for EFF to “get their teeth into UMG” for sending takedown notices. As a result, U.S. Magistrate Judge Patricia Trumbull granted UMG’s motion to compel further discovery regarding Lenz’s motives for bringing the action.

Then, in her chats, she revealed legal strategies, including EFF’s plan that it was using her case to clarify a ruling in a different case. Judge Trumbull granted UMG’s motion for further discovery on that subject, too.

Finally, in her blog, Lenz spoke of her conversations with counsel pertaining to certain specific factual allegations. You know what happened. The court held that she had voluntarily waived her privilege in this regard as well.

The lesson here: All clients need a lecture about using e-mails, chats, blogs, and any other form of social media to talk about confidential attorney-client communications. As in, “Don’t.” As this case demonstrates, even the EFF now knows that, in litigation, too much freedom can be a dangerous thing.

Nick Brestoff, M.S., J.D. | Western Regional Director | Discovery Strategy & Management
International Litigation Services | www.ilsTEAM.com | nbrestoff@ilsTEAM.com | (213) 674-4334

e-Discovery: Proportionality, Technology and Practice Standardization

Posted by Douglas Forrest on Nov 4, 2010

 

Principal 6 of the just released Sedona Conference Commentary on Proportionality in
Electronic Discovery provides that:

Technologies to reduce cost and burden should be considered in the
proportionality analysis

While most of the provided commentary (parties should meet and confer, etc.) will be familiar to e-discovery adepts, there is some that is more novel (clue: no supporting footnotes or citations), viz.,

Parties and law firms that are involved in a significant amount of electronic discovery may choose a standard tool that meets their overall needs. The fact that the standard tool is not the best fit for an individual case should not be held against the firm or the party unless it is conspicuously inadequate for the case, as might happen where the volume of information is unusually high. Parties and law firms may have to consider other tools for cases that exceed the capacity of the standard tool. (Italics added.)

A few thoughts:

Except in those still relatively uncommon instances where parties are hosting review platforms themselves, the standard tools chosen by parties that would be relevant here would seem to be those used for identification, preservation and collection. However, the only specific caveats raised relate to the capacity to handle high volumes, which speaks almost exclusively to post-collection processing and review platforms.

The statement that the choice of a standard tool which is not the best fit for a particular case “should not be held against the firm or the party unless it is conspicuously inadequate for the case, as might happen where the volume of information is unusually high” is no safe harbor, but a standard of conspicuous inadequacy could still be rather useful as a bulwark in some cases.

The language could also assist law firms and general counsel offices in making  a case not only for selecting and deploying the right standard tools but also, by arguably giving some measure of protection against technological obsolescence,  doing so sooner rather than later.

Of course, what is a rule without exceptions? In addition to the capacity caveats, the commentary ends on this note:

While technology may create efficiencies and cost savings, it is not a panacea and there may be circumstances where the costs of technological tools outweigh the benefits of their use.