Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal

[Post by Venkat]

Lenz. v. Universal Music Corp., Case No. C 07-03783 JF (PVT) (N.D. Cal.; Oct. 22, 2010) [pdf]

The “‘Let’s Go Crazy’ Dancing Baby” takedown case yielded an interesting discovery ruling. Universal (the defendant) argued that: “[plaintiff] made repeated disclosures to third parties regarding her confidential communications with legal counsel and . . . referenced multiple subjects related to [the] litigation and [her] allegations before the court.” Universal alleged that these disclosures “occurred in emails, electronic chats with online friends, and on [plaintiff's] personal blog located at www.piggyhawk.wordpress.com.” A magistrate judge held that the plaintiff’s disclosures resulted in a waiver of the attorney/client privilege with respect to this subject matter, and that Universal was entitled to conduct discovery regarding plaintiff’s communications with her attorneys around these subjects.

Motivations for pursuing the lawsuit: Lenz asserted that she was pursuing the case to vindicate her First Amendment rights. Universal argued that plaintiff had an ulterior motive, and waived the privilege with respect to her motivations by (among other things) sending an email to a friend that included the following:

They [the EFF] are very, very interested in the case. I imagine so. I’ve never heard of anything like it. She [an EFF lawyer] said that Universal Music Group is creating a trend of just going all over the web claiming copyright infringement left and right & that they’re breaking laws & such to do it. So EFF is pretty well salivating over getting their teeth into UMG yet again.

Judge Trumbull held that because this email and others related to the “actual substance of her conversations with her attorneys,” plaintiff waived the privilege with respect to her motivations for pursuing the lawsuit.

Communications regarding legal strategies: Universal also argued that plaintiff waived the privilege with respect to her strategies behind re-pleading the complaint, by discussing her litigation strategy in a Gmail Chat with a friend. In one chat with a friend, plaintiff stated:

we’re going back to the same judge with more facts, more case law and strengthening the federal aspect. We’re dropping the state charge, which was that they violated the contract w/YouTube . . . this way their threat of [h]itting me with a SLAPP suit (‘pay our lawyers’) is dust . . . b/c the SLAPP statute is a state thing, not a federal. If I make no state claim, they can’t respond with the SLAPP allegation . . . thing is, they’re fighting YouTube over the federal thing right now too . . . so in my case it’s like “pick a federal law you’re accusing me of breaking” it’s lose-lose for them on [DMCA] front but they can’t admit publicly that they’re filing DMCA notices b/c that would obliterate the YouTube fight they’re having . . . I told [EFF counsel] that since pursuing the federal portion of the case achieves the ends I have in mind, that’s fine to drop the state portion (that they filed a false DMCA notice, tha[t] they’re accusing me of copyright infringement and that a ruling in our case could clarify a cloudy decision known as “Rossi”).

The court also found a waiver due to plaintiff’s disclosure of her legal strategies. However, the court found that the only relevant subject matter was plaintiff’s communications with counsel regarding “clarification of the Rossi decision.”

Communications regarding factual allegations: As with the other two subjects, plaintiff also disclosed information regarding her discussions with lawyers around the factual allegations. For example, one (Gmail chat) exchange with a reporter included the following:

[Reporter from "Zerogossip.com"]: You contacted the Electronic Frontier Foundation. What are you hoping for?

[Plaintiff]: When I contacted EFF, I did so at the suggestion of a friend of mine who’s a lawyer in Canada. I wanted to know my rights, how to protect myself in case UPMG sued me and in what way (if any) I had infringed copyright. In discussing the situation with one of the EFF lawyers, we came to the conclusion that I did not infringe the copyright and eventually we decided to file this lawsuit.

Plaintiff also responded on her blog to a reader comment about a fair use defense:

You’re right Richard. Mine’s not a ‘fair use’ case at all. Nor is it a parody. It’s something different. I’ve never heard of anything like it, which is why I contacted EFF.

The court held that plaintiff’s discussions of the factual allegations also resulted in a waiver.

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Ouch. As Tom O’Toole notes, EFF is appealing this discovery order. This ruling is probably not fatal to the case, but certainly ends up being a distraction, and could yield Universal information that it could use to distract from the core issues in the case (which centers around the propriety of the takedown issued by Universal).

Much of the concern around communications in the modern era focuses on the lawyer’s own communication, and the risk that this communication somehow compromises the case. It’s interesting that here, the litigant’s own communication is the basis for the waiver argument. It’s also worth noting that pre-email/chat, Universal’s lawyers would have had a much tougher time getting at this information and making this argument. They would have probably questioned plaintiff in a deposition on whether she communicated about the case with anyone and she would have either said no, or would have said that although she discussed the case in general terms, she did not discuss the facts in detail or talk about her communications with her lawyers.

This ruling is a reminder not only that counsel should be careful with their disclosures regarding pending litigation, but the parties should as well (and that the parties could probably could use reminders of this). [For what it's worth, I didn't find the magistrate judge's conclusions on the waiver issue 100% persuasive, but we'll see what the appeal yields.]

Update: the district court judge upholds the ruling: “District Court Upholds Order for Discovery Into Lenz Communications.”

Previous posts on Lenz:

Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal

Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal

Other coverage:

Magistrate: Lenz Waived Attorney-Client Privilege Through Chats, Blogging” (Tom O’Toole)