Talking About Your Case on Social Media May Waive Your Privilege
An American magistrate judge (sort of like a master) has ruled that a plaintiff suing a company for improperly sending a takedown notice under the DMCA has waived a number of heads of attorney-client
privilege by discussing the details of her legal case too broadly by email and on a blog (Eric Goldman blog (per Venkat))
So it’s not just lawyers who have to worry about waiving privilege – the clients can do so too. It’s not that the media of communications were insecure in themselves, it’s that they left traces that could be
found (not surprising, for a blog, or in an exchange with a reporter).
The decision is under appeal. I would have thought that the principle is right, and would be the same under Canadian common law, whether the particular communications in this case justified the result or not.
Do you advise your clients to restrict their discussions of their case? If not, would you do so after seeing this decision?
In my experience, competent litigators know they have to tell their clients not to discuss the case with any other than the lawyer, the lawyer’s representatives (and immediate family if appropriate)regardless of the media used. Those who don’t know why they have to do it usually do it because they’ve read or heard that those who do, do. If nothing else, this profession produces competent enough parrots.
Do clients actually listen? Once – when communities were small – gossip mattered. Then, for a while, as communities grew, it probably mattered less. Still, there was rarely damage, historically, because the wind didn’t carry the whispers to the right ears in the right way. There was also the needle in the haystack principle.
Now, it matters more, again. Too often, the directions are less useful than pissing in the wind. Modern methods of communication have and continue to erode that practical protection against loosetalk.
Some litigant and his/her/its lawyer will get burned, soon enough. It’s the client’s privilege to waive.
On the other hand, if that means the truth comes out, then the aggrieved litigant has nothing to validly complain about. Right?
What’s that? Truth isn’t the bedrock of litigation? Silly me.
DC