Waiver of Attorney-Client Privilege Via Facebook

Breaches of confidentiality via Facebook and other social media are more common than most of us would like to think.  Employees post information about customers, clients, and patients on Facebook, in violation of internal company policies and privacy laws, such as HIPAA, for example.  I recently wrote about a plaintiff who could not collect a sizeable settlement payment because his daughter posted about the settlement on Facebook, which served to demonstrate that her father had breached the confidentiality provision in the settlement agreement. 

There’s another reason to be concerned about what employees say on social-networking sites—waiver of the attorney-client privilege.  The general rule is that confidential communications between an attorney and her client are subject to the privilege and are not subject to discovery by the opposing side.  Privilege can be waived, however.  And one way for a client to waive privilege is to have the communication in the presence of a third party.  Another way is for the client to tell a third party about the communication between himself and his lawyer. 

For example, Lawyer and Client meet to discuss strategy regarding litigation.  This conversation would be privileged.  If Client brings his friend to the meeting, the conversation would not be privileged.  And, if Client did not bring his friend but reported the conversation to his friend after the meeting was over, the privilege would be lost. 

Communicating an otherwise privileged conversation via Facebook is no different than if done via telephone or in person.  A case decided earlier this week in a federal court in Nebraska reminds us of this risk.  In Kaiser v. Gallup, Inc., the employee-plaintiff filed suit under the ADA against her former employer.  During discovery, the employer learned that the plaintiff had communicated with her cousin, who was a lawyer, about events leading up to the plaintiff’s termination.  The employer also discovered that the plaintiff had discussed the  communications with her cousin (the lawyer) via Facebook. 

The employer sought to compel the plaintiff to produce those communications.  In response, the plaintiff contended that they were protected by the attorney-client privilege because, at the time the communications were made, her cousin represented her as counsel in her unemployment-benefits claim.  The employer argued that, even if the privilege had once applied, the plaintiff waived it when she discussed the communications with third parties.  The plaintiff failed to show that she hadn’t waived the privilege and the court granted the employer’s motion. 

This case, and others like it, serve as a good reminder that confidential information should not be shared through any medium, including social media.  Posting it to Facebook is, contrary to popular belief, the equivalent to sharing it on the phone, in an email, or in person.  If it’s a secret—it doesn’t belong on Facebook. 

Kaiser v. Gallup, Inc., No. 8:13CV218, 2014 U.S. Dist. LEXIS 92588 (D. Neb. July 8, 2014).

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