November 30, 2010
Loose Lips Sink Ships And Can Waive Attorney-Client Privilege
There was a recent case noted in the BNA Electronic Commerce & Law Report that shows what happens when counsel can't manage their plaintiffs. Anyone remember the case of the dancing baby on YouTube? Stephanie Lenz videotaped her child dancing to Prince's Lets Go Crazy. The music happened to be playing on kitchen counter top speakers. Universal Music Group set take down notices to YouTube, which promptly removed the video, and Lenz sent counter notices which caused YouTube to restore the video after a few weeks. Then the fun began.
Lenz, represented by the Electronic Frontier Foundation, sued Universal on the issue of whether the take down notice was issued in good faith, something required by the DMCA. A full statement of the details of applicable precedent and the Lenz case is at the Technically Legal Blog. Lenz raised a viable issue which could clarify one of the less litigated points of copyright law. The case, in fact, survived a motion to dismiss. So far, so good.
Lenz, apparently, complicated her own litigation with a bad case of the blabs. And not merely private blabs, but through a blog and online chats, revealing, in the process, litigation strategy, motivation, and details of her conversations with her attorneys at the EFF. Universal pounced on that pretty quickly and demanded discovery on those topics. A Magistrate Judge ruled that disclosure to third parties waived attorney-client privilege and ordered discovery to proceed on relevant points. The trial judge later affirmed the order, promising an opinion.
So, what got Miss Lenz in trouble? Oh, things like this, related in several email chats to friends:
we’re going back to the same judge with more facts, more case law and strengthening the federal aspect. We’re dropping the state charge, which was that they violated the contract w/YouTube . . . this way their threat of [h]itting me with a SLAPP suit (‘pay our lawyers’) is dust . . . b/c the SLAPP statute is a state thing, not a federal. If I make no state claim, they can’t respond with the SLAPP allegation . . . thing is, they’re fighting YouTube over the federal thing right now too . . . so in my case it’s like “pick a federal law you’re accusing me of breaking” it’s lose-lose for them on [DMCA] front but they can’t admit publicly that they’re filing DMCA notices b/c that would obliterate the YouTube fight they’re having . . . I told [EFF counsel] Corynne [McSherry] that since pursuing the federal portion of the case achieves the ends I have in mind, that’s fine to drop the state portion (that they filed a false DMCA notice, tha[t] they’re accusing me of copyright infringement and that a ruling in our case could clarify a cloudy decision known as “Rossi”)
you’ll love the brief my lawyer wrote up, once it’s a finished public document . . .She’s really going after UMPG & now Prince is the villain as well. Our lawsuit was filed before we knew he had a hand in it. Now she’s kind of hinting that they’re doing this b/c Prince bullied them into it and that there’s been ample public proof that he wants everyone targeted, no matter whether they’re actually guilty of anything. It’s delicious.
There's much more quoted in the order, including disclosures on motivation for the suit made to news web sites. It's obvious that the EFF took an interest in the case to clarify a portion of the law. Nothing wrong with that. It's their job as a public interest organization. I can't imagine what the lawyers at the EFF must be thinking, having to deal with the consequences of these communications. None of this had to happen. I have to believe that they warned Lenz on talking about the case in public as standard procedure in representing her. Let's hope she learned her lesson as the case goes forward. The next deposition she gives ought to be a pretty interesting read. Download the order 07cv3783_102210. [MG]