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Social media provides the potential for both client and attorney to waive work-product doctrine protection and attorney-client privilege by publicly disclosing confidential information.
Voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege as to all other such communications on the same subject. Generally, to constitute a waiver, the disclosure must be voluntary and inconsistent with the confidential nature of the attorney-client relationship and must be made to "unnecessary third parties."
The following cases demonstrate the real dangers of posting to social media sites.
Without more, the complete access afforded to the Facebook and MySpace operators defeats McMillen's proposition that his communications are confidential. The law does not even protect otherwise privileged communications made in the presence of third parties. See e.g. In re Condemnation by City of Philadelphia, 981 A.2d 391, 397 (Pa. Commw. Ct. 2009) ("Confidentiality is key to the [attorney-client] privilege, and the presence of a third-party during attorney-client communications will generally negate the privilege"). When a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate. That fact is wholly incommensurate with a claim of confidentiality. Accordingly, McMillen cannot successfully maintain that the element of confidentiality protects his Facebook and MySpace accounts from discovery. ... The Court reaches the same result upon considering Wigmore's test for privilege.
Additional Resources:
Alexander "Sandy" Y. Thomas, Maureen C. Cain, Emma Lenthall, and Louise Berg, Social Media in Action in Litigation, Evidence & Privilege, Legal Bytes (available at http://www.legalbytes.com/tags/waiver-of-the-workproduct-doct/)
Network Interference: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon (2nd Edition) (Reed Smith, available at http://www.reedsmith.com/publications/white_papers.cfm?cit_id=26419&widCall1=customWidgets.content_view_1&usecache=false)
This article is an excerpt of the written materials from Using Facebook and Other Social Networking Sites as Informal Discovery, a continuing legal education course presented by the ABA Young Lawyers Division at the 2011 ABA MidYear Meeting in Atlanta, Georgia. This portion of the course was presented by Lisa McManus, Web 2.0 Legal Communities Manager at LexisNexis. Other panelists included Min Cho, an associate with Holland & Knight LLP in Orlando, Florida, and Stacie S. Winkler, an associate with Baker, Donelson, Bearman, Caldwell & Berkowitz, PC in Memphis, Tennessee.