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
