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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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