Talking about your case on your blog? You may have just waived privilege

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.

Federal Court of Appeal decision clarifies effects of partial waiver of privilege

On January 30, 2009, the Federal Court of Appeal (FCA) clarified the circumstances under which a partial waiver of privileged material can result in an implied complete waiver of privilege. The FCA's decision in Merck & Co. Inc. et al. v. Apotex Inc. et al. (2009 FCA 27) was an interlocutory decision in a patent infringement case.

The issue arose in the context of examination for discovery in respect of the patent dispute, which relates to the manufacture of a drug called lovastatin. This drug is produced by certain micro-organisms, and the production of lovastatin from the Aspergillus terreus micro-organism is covered by a Canadian patent owned by the plaintiff, Merck & Co. Inc. (Merck). Merck had apparently carried out some tests, for the purpose of the litigation, to improve its understanding of the process used by the defendants. As the tests were conducted for the purpose of the litigation, information about the tests qualified for protection under the litigation privilege. The purpose of the litigation privilege is to create a zone of privacy in relation to pending or apprehended litigation, to facilitate investigation and preparation of a case for trial by the adversarial advocate.

At an examination for discovery, Merck's representative answered certain questions relating to these tests. Apotex then asked further questions regarding the tests, which the Merck representative refused to answer, asserting that the information was privileged.

It is clear that before the Merck representative had answered any questions about the tests, the entirety of the information was privileged, and Merck did not have to answer questions about them. However, when Merck answered certain questions about the tests, this privilege was partially waived. When a partial waiver of privilege has occurred, the law requires that the privilege in issue be completely waived if permitting some of the information to remain privileged would lead to inconsistency or unfairness.
This rule exists because the purpose of privilege is to preserve a zone of privacy for certain types of information. Privilege does not exist to enable litigants to unfairly and inconsistently disclose and rely on the favourable elements of these types of information, while maintaining the secrecy of the unfavourable elements. 

In overturning the Federal Court decision, the FCA took issue with the lack of identification of any particular inconsistency or unfairness that might arise if the partial waiver of privilege stood. The FCA noted that the Federal Court decision simply invoked the concepts of consistency and fairness, but did not explain them.

In contrast, the FCA carefully examined possible unfairness to the defendants, and found that no unfairness could result. Merck could not make use if its own partial responses, and the test information itself, if it were to be relied on, would have to be disclosed well in advance of trial. Having found no actual unfairness to the opposing party, the Court of Appeal held that fairness and consistency did not require the complete waiver of privilege. Accordingly, the additional information about the test, sought by Apotex, could remain undisclosed.

The case is a reminder of the care that must be taken when issues of privilege arise. Partially waiving privilege is a significant strategic decision, and the possible ramifications of such a decision must be carefully considered.