Safeguarding Your Confidential Information

Social media presents a new threat to you preserving the lawyer-client privilege. In a digital age we operate in a world where clients and lawyers routinely communicate confidential information by e-mail. Those e-mails can be forwarded to others with a couple of key strokes. Preserving the lawyerclient privilege and the client’s confidential information can be a challenge. The prominence of social media provides one more reason to not disseminate confidential information more widely than strictly necessary.

A recent federal court case from California highlights the new threat social media poses to clients’ confidential information. In Lenz v. Universal Music Corp., 2010 WL 4789099 (November 17, 2010, N.D. Cal.), the plaintiff wrote about the lawsuit in e-mails to her mother, electronic chats with friends and postings on her blog, including the substance of communications with her lawyers and descriptions of their trial strategy. The court ruled that this waived the lawyer-client privilege as to those communications. Worse, under well established federal law, the waiver extended not only to the specific communications revealed but to the subject matter of those communications. Ms. Lenz’s “secrets” as well as those of the lawyers who were trying to help her, were ordered revealed in the discovery process.

This case is a reminder to organizational clients that if they are not careful with their e-mail systems, they should not be surprised if some of their confidential information starts showing up on social media sites. If that information includes communications with lawyers concerning disputed matters, a court might well conclude that any lawyer-client privilege or work product protection that would otherwise be afforded to them are waived and that their subject matter is fair game for discovery.

von Briesen & Roper Legal Update is a periodic publication of von Briesen & Roper, s.c. It is intended for general information purposes for the community and highlights recent changes and developments in the legal area. This publication does not constitute legal advice, and the reader should consult legal counsel to determine how this information applies to any specific situation.