John Gregory’s post on slaw.ca briefly discusses the recent California decision in Lenz v. Universal Music Corp., Case No. C 07-03783 JF (PVT) (N.D. Cal.; Oct. 22, 2010) dealing with a client’s waiver of privilege on social media: see also, Venkat Balasubramani’s post on Eric Goldman’s Technology & Marketing Blog and [pdf link] and Tom O’Toole’s E-Commerce and Tech Law Blog.
In classic Socratic style, befitting Professor Charles W. Kingsfield, Jr., Gregory slyly asks:
“Do you advise your clients to restrict their discussions of their case? If not, would you do so after seeing this decision?”
He’s kidding, of course. Unless you want to be sued for professional negligence, or possibly even disbarred for gross incompetence, the question is rhetorical. Nevertheless, having read the decision of United States Magistrate Judge Trumbull in Lenz v. Universal Music, and the Plaintiff’s Motion for Relief from October 22, 2010 Order (courtesy of Tom O’Toole’s post), there are a few significant differences between American and Canadian approaches to the law of privilege worth noting here.
At the outset, the common law of privilege can only be understood within the context of the discovery process. For those unfamiliar with the differences between American and Canadian discovery rules, I commend readers to an article by Brett Harrison et al., “International Discovery: Around the World in Ninety Minutes“, 2008 ABA Annual Meeting, Section of Litigation, August 7-10, 2008.
In Lenz v. Universal Music, the defendant argued waiver of privilege based upon three categories of communications:
(1) communications regarding plaintiff’s motivation for pursuing the action;
(2) communications regarding specific legal strategies; and
(3) communications regarding the substance of plaintiff’s factual allegations. (Lenz v. Universal Music, at p. 4).
According to Judge Trumbull:
“The doctrine of waiver of attorney-client privilege is rooted in notions of fundamental fairness.” Michael E. Tennenbaum, et al. v. Deloitte & Touche, 77 F.3d 337, 340 (9th Cir. 1996). “Its principal purpose is to protect against the unfairness that would result from a privilege holder selectively disclosing privileged communications to an adversary, revealing those that support the cause while claiming the shelter of the privilege to avoid disclosing those that are less favorable.” Id. at 340-341.
“[I]t has been widely held that 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.” Pauline Weil, et al. v. Investment/Indicators, Research and Management, Inc., et al, supra, 647 F.2d at 24.(Lenz v. Universal Music, at pp. 3-4)
The key differences between U.S. and Canadian law on privilege is ordering of principles. In the U.S., attorney-client privilege protects confidential communications between an attorney and his or her client made during the course of legal representation, or in the context of providing legal advice to the client. Privilege protects only the communication; not the underlying facts. The work-product doctrine (which in Canada is also referred to as “litigation privilege”) protects documents and physical evidence prepared in anticipation of litigation by an attorney or the attorney’s agents, but does not restrict disclosure of an attorney’s ideas, conclusions, opinions or legal theories, with regard to actual or reasonably anticipated litigation.
As Judge Trumbull notes,
“Because the attorney-client privilege is in derogation of the search for truth, it is ‘narrowly and strictly construed.’” Verizon California, Inc. v. Ronald A. Katz Technology Licensing, 266 F. Supp. 2d 1144, 1147 (C.D. Cal. 2003) (internal citations omitted). The party asserting the attorney-client privilege bears the burden of proving that it applies. Pauline Weil, et al. v. Investment/Indicators, Research and Management, Inc., et al., 647 F.2d 18, 25 (9th Cir. 1981)(internal citations omitted). “One of the elements that the asserting party must prove is that it has not waived the privilege.” Id. (Lenz v. Universal Music, at p. 3)
Similarly, in Canada, solicitor-client privilege protects direct communications between lawyer and client related to the provision of legal advice. Solicitor-client privilege has evolved from a rule of evidence to a rule of a substantive law. However, while the ‘search for truth’ is an important principle, solicitor-client privilege is a cornerstone of the legal system; it supecedes the search for truth (with narrow exceptions discussed below) to ensure public confidence and in order to retain its legal and societal relevance: Blank v. Canada (Minister of Justice) 2006 SCC 39 (CanLII),  2 S.C.R. 319 at para. 24 and R. v. McLure 2001 SCC 14 (CanLII),  1 S.C.R. 445. Canadian jurisprudence, thus makes privilege the super-ordinate principle, placing the onus on those seeking to set aside the privilege to justify doing so: Smith v. Jones 1999 CanLII 674 (S.C.C.),  1 S.C.R. 455 at para. 46.
Conversely, litigation privilege under Canadian law protects communications and documents created for the dominant purpose of, or advice relating to, actual or anticipated litigation. Unlike the American approach, litigation privilege is neither directed at, nor restricted to, communications between lawyer and client. It encompasses communications between a solicitor or litigant and third parties based upon a “zone of privacy”, without adversarial interference: Blank, supra, at paras. 27 and 28; General Accident Assurance Co. v. Chruz, 1999 CanLII 7320 (ON C.A.), (1999) 45 O.R. (3d) 321 (C.A.) paras. 22 to 26.
Master Glustein, in Eisses v. CPL Systems Canada Inc., 2009 CanLII 45440 (ON S.C.) notes that privilege may be waived in two circumstances:
(i) a party (or its counsel) has knowledge of the disclosure of privileged documents and remains silent, and opposing counsel relies on such silence (Chapelstone Developments Inc. v. Canada,  N.B.J. No. 450 (C.A.) at para. 55); or
(ii) a party (or its counsel) engages in careless or reckless conduct with respect to disclosure of privileged documents that goes beyond inadvertence (Earth Energy Utility Corp. v. Maxwell,  O.J. No. 2800 (S.C.J.) (“Earth Energy”), at paras. 30-31, and 35-36; Chan v. Dynasty Executive Suites Ltd.,  O.J. No. 2877 (S.C.J.) at para. 40).
If the Lenz v. Universal Music case were litigated in Canada, the result would likely be quite different. Even if the plaintiff put her state of mind at issue in the pleadings, it is doubtful that a court would conclude that she waived her solicitor-client privilege (on the specific subject-matter or issue) by discussing her motivations to litigate or some factual allegations via Gmail messages and blog comments. It appears that the plaintiff in this case discussed these issues online after she filed her complaint. In any event, as McLachlin J. (as she then was) noted in S & K Processors Ltd. v. Campbell Avenue Herring Producers Ltd. 1983 CanLII 407 (BC S.C.), (1983), 35 C.P.C. 146, 45 B.C.L.R. 218 (S.C.):
“Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege (1) knows of the existence of the privilege, and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication, will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost.”
As Justice Winkler (as he then was) in Toronto-Dominion Bank v. Leigh Instruments Ltd. (Trustee Of) 1997 CanLII 12113 (ON S.C.), (1997), 32 O.R. (3d) 575, at para. 61 writes:
“Placing state of mind in issue will not amount to a waiver in every case. The guiding principles must be fairness and consistency. In a case where a party has placed its state of mind in issue, and has given evidence that it received legal advice which, in part, formed the basis of that state of mind, the distinction between state of mind and the legal advice giving rise to it cannot be maintained.”
It would be dubious for a Canadian court to consider a plaintiff’s musings or speculation about her lawyer’s legal strategy as constituting implied waiver of privilege, carte blanche.
The key point to take away is that airing your dirty laundry on the internet is a lousy idea. It only distracts the court from the core legal and factual issues (copyright infringement, fair use, DMCA take-down notices, the First Amendment, to name a few) and only delays the trial of the action.
Here, then, is The Trial Warrior’s #1 Law of Social Media:
NEVER DISCUSS YOUR CASE, ANYWHERE, ANYTIME OR WITH ANYONE (EXCEPT YOUR LAWYER).
If you are a litigator and you suspect your client may be tempted to break this rule, then I recommend that you use this 80’s classic by The Smiths as your background music on your answering machine: