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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.
· In McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270, the plaintiff claimed substantial injuries, including possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life, after he was rear-ended during a cool down lap following a July 7, 2007, stock car race. The court granted defendants’ Motion to Compel Discovery and ordered the plaintiff to provide his Facebook and MySpace user names and passwords to counsel for defendants after defendants reviewed the public portion of plaintiff’s Facebook account and discovered comments about his fishing trip and attendance at the Daytona 500 race in Florida, reasoning
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.
· In the YouTube “dancing baby” case, the court held that the plaintiff waived her attorney-client privilege by virtue of posts on her blog, gmail chat, and emails discussing those communications. Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 119271 (N.D. Cal. Oct. 22, 2010).
· In Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003), Kintera sued its competitor Convio for copyright infringement and misappropriation of trade secrets after Convio allegedly obtained a CD Rom belonging to Kintera containing proprietary and confidential computer program codes relevant to both companies’ Internet-based marketing and fundraising services. For commercial reasons, Kintera discussed the alleged misappropriation of trade secrets on its company website and noted that it had obtained signed affidavits under penalty of perjury from Convio employees. During discovery, Kintera tried to withhold the affidavits from Convio pursuant to the work-product doctrine, but based on the disclosures of the affidavits on Kintera’s website, the court rejected Kintera’s objections and ordered that Kintera produce the witness statements contained in the affidavits.
· In Stern v. O’Quinn, 253 F.R.D. 663 (S.D. Fla. 2008), Howard K. Stern, the attorney and friend of Anna Nicole Smith, filed a defamation suit against a firm after the firm allegedly made defamatory statements about Mr. Stern to the media while representing Ms. Smith’s mother, Virgie Arthur. Concurrently, a book entitled Blond Ambition: The Untold Story Behind Anna Nicole Smith’s Death was published and accused Mr. Stern of numerous criminal acts. An investigator for the book discussed the results of her investigation with the author and also made numerous statements in on-line chat rooms regarding her investigative progress, including strategy, to have Mr. Stern prosecuted, as well as conversations she had with Ms. Arthur. During discovery, Mr. Stern sought documents from the firm that supported the statements made by the firm to the media. The discovery requests sought to determine the firm’s efforts in investigating whether the statements it made about Mr. Stern were true or false, including the statements made by the investigator for the Blond Ambition book. The firm claimed that the investigation for the book was protected by the work-product doctrine, but the court rejected the argument because the contents of the investigation were published in chat rooms and to the author of the book. Accordingly, the court required the production of all postings in the chat rooms and all documents and statements provided to the author of the book.
Alexander "Sandy" Y. Thomas, Maureen C. Cain, Emma Lenthall, and Louise Berg, Social Media in Action in Litigation, Evidence & Privilege, Legal Bytes (available by following this link.)
Network Interference: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon (2nd Edition) (Reed Smith, available by following this link.)
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.
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