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Protecting Privilege in the Information Age

March 19, 2013

Young boy dancing in a YouTube video

By Meredith McGroarty

A thirty-second YouTube video of a toddler dancing to a Prince song encapsulates several major legal problems specific to the digital age–the ambiguities surrounding copyright, fair use, privacy, and attorney-client privilege.

Although fewer than thirty people had watched the video before it was initially pulled, the lawsuit it spawned could have far-reaching effects, according to Paula Schaefer, associate professor in the UT College of Law.

The backstory for the case is fairly simple. In February 2007, Stephanie Lenz posted a short video of her eighteen-month-old child dancing to Prince’s “Let’s Go Crazy.” In June of that year, Lenz received an e-mail from YouTube saying her video had been removed at the request of Universal Music Publishing Group, the largest recording label in the industry and the copyright administrator for the song. Lenz filed a counter-notice to have the video restored, and it was, six weeks later.

The legal issues quickly multiplied. Lenz filed a civil lawsuit against Universal claiming the company was abusing the federal Digital Millennium Copyright Act (DMCA) by ordering YouTube to remove videos that were, like hers, “self-evident non-infringing fair use.” In August 2008, a US District Court ruled that copyright owners must consider fair use when issuing takedown notices under the DMCA.

But the litigation continued. Universal claimed that Lenz had discussed “privileged” information pertaining to the case on her blog, in e-mail messages, and during online chat conversations with third parties, thus waiving her right to keep this information private as part of attorney-client privilege. In these messages and chats, Lenz shared factual allegations and information on legal strategies she discussed with her attorneys without realizing the legal repercussions.

Paula Schaefer

Paula Schaefer

“Voluntary disclosures that compromise confidentiality have always resulted in privilege waiver,” says Schaefer. “It was easy for Lenz to voluntarily spread information about this case, and it was easy for Universal to find out that she revealed this information publicly.”

The court ruled Lenz willingly waived the privilege as to her communications with counsel, and it ordered documents previously withheld on the basis of privilege to be released. Lenz’s larger case against Universal is ongoing.

Schaefer notes that the number of cases like Lenz’s–where the attorney or client intentionally or inadvertently discloses privileged data–has risen in recent years due to a sharp increase in electronic communication.

During the discovery phase of a suit, lawyers on both sides have the right to ask each other for documents relevant to the case in question. Twenty years ago, this may have meant a box full of paper, including printed reports and typed letters. Today, it often means sifting through hundreds or thousands of e-mail messages, including threads or conversations containing a mix of privileged and non-privileged information.

During this process–known as electronic discovery, or e-discovery–separating the privileged statements from the unprotected ones can be extremely complex and time-consuming. Sometimes privileged information may inadvertently leak through to the opposing side. Protections in place for these situations can include “clawback agreements,” where attorneys define the circumstances in which an inadvertent disclosure will not result in privilege waiver.

“Both the attorney and client must protect privilege. Attorneys have to ensure clients know how to protect privilege. They have to explain that it’s protected by keeping attorney-client communications confidential,” says Schaefer, a leading expert on e-discovery.

Schaefer explains that the Lenz case spotlights the importance of attorneys and clients familiarizing themselves with how to protect privilege. Clients must be reminded that any communications made, received, or accessed through a work computer belonging to a third party may not be considered privileged. Likewise, blog, Facebook, and Twitter posts are not necessarily protected, regardless of the user’s privacy settings.

“The biggest threat to privilege is the sheer volume of information and how impossible it is to protect that information from being accidentally turned over to the other side. Clawback agreements are one tool to protect information, but attorneys sometimes think they’ve protected themselves when they really haven’t,” Schaefer remarks. “Attorneys need to educate themselves about how to draft more effective clawback agreements.”

The attorney-client privilege is not at risk because attorneys and clients don’t understand modern technology. The problem is that technology is so prevalent that it can be hard to keep track of, let alone control, what gets transmitted digitally, Schaefer says. The real risks to privilege are the ease of disseminating information in public forums like Facebook; the large volume of information contained in e-mail conversations or blog posts; and attorneys’ understanding of laws allowing them to protect against privilege waiver.

“Technology threatens attorney-client privilege, but that doesn’t mean attorneys and clients shouldn’t use e-mail or have blogs. Education of lawyers and clients on keeping information private and the tools that are out there to protect privileged information is the key. With an understanding of this legal knowledge gap, we can educate our clients and ourselves to better protect the privilege in the information age,” Schaefer concludes.