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Friday, November 12, 2010

Magistrate: Lenz Waived Attorney-Client Privilege Through Chats, Blogging

by Thomas O'Toole

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 In addition to copyright infringement, trademark infringement, loss of employment, loss of prospects for employment, loss of friends, loss of privacy, cyber-bullying, cyber-stalking, defamation, juror misconduct, home robbery while you're out of town, and plain old creating evidence that can later be used against you in court, we can now add waiver of attorney-client privilege to the list of bad things that can happen through ill-advised use of social media.

That is what appears to be happening in Lenz v. Universal Music Corp., No. 07-3783 (N.D. Calif.), where a magistrate judge ruled late last month that plaintiff Stephanie Lenz waived attorney-client privilege by going on and on (and on) about her case in e-mail, on her blog, and in Gmail chat sessions. Through these online media, Lenz made representations about conversations she allegedly had with her Electronic Frontier Foundation attorneys -- conversations that involved why she sued Universal and discussions of legal strategies she was pursuing in her suit against the company. The magistrate judge ruled Oct. 22 that these online communications amounted to a waiver of the attorney-client privilege and that the communications were relevant to the plaintiff's motives for filing suit against Universal. The magistrate ordered EFF to produce all documents previously requested by Universal but withheld due to a claim of attorney-client privilege; additionally, the plaintiff must submit to an additional deposition by Universal's counsel.

In Lenz, the plaintiff is claiming a right to damages and attorneys' fees as a result of Universal's alleged filing of a fraudulent DMCA take-down notice seeking to have a home video of the plaintiff's child dancing to a copyrighted Prince song removed from YouTube. The case has already produced a significant DMCA ruling. In 2008, Judge Jeremy Fogel ruled that a copyright holder must consider whether the use of a copyrighted work falls within fair use exceptions to the Copyright Act before filing a DMCA take-down notice. The DMCA, at 17 U.S.C. § 512(c)(3)(A)(v), requires that copyright owners provide a “statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” among other things, in a takedown notice. “An allegation that a copyright holder acted in bad faith by issuing a take-down notice without proper consideration of the fair use doctrine … is sufficient to state a misrepresentation claim,” Judge Fogel held.

The Lenz case may yet produce an important ruling about the extent of a copyright holder's liability for sending a bad faith DMCA take-down notice. The statute is not clear on the extent of damages that may be awarded to persons who are forced to deal to bad faith DMCA take-down notices.

Today, more than two years after Judge Fogel's ruling, discovery is complete in Lenz and the case is ready for summary judgment motions and, if necessary, trial of any remaining factual issues. Unfortunately for the plaintiff, her ill-advised online rambling has given Universal's counsel a messy, peripherial issue to chew on -- something to argue about other than Universal's liability for sending an allegedly spurious DMCA take-down notice.

EFF has decided not to comply with the magistrate's discovery order just yet. On Nov. 2, it filed a motion with Judge Fogel for relief from the magistrate's discovery order.
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