## Facts

- Stephanie Lenz posted a home video on YouTube showing her young son dancing while a Prince song played in the background.
- Universal Music Corporation and related entities administered rights in Prince’s music and sent YouTube a DMCA takedown notice asserting the video infringed copyright.
- YouTube removed the video; after Lenz submitted a counter-notification, YouTube later restored it.
- Lenz sued Universal and its subsidiaries, alleging the video was noninfringing fair use and that Universal’s takedown harmed her rights, including free speech and self-expression. The Electronic Frontier Foundation (EFF) represented Lenz.
- In discovery, Universal sought communications between Lenz and her attorneys. Lenz withheld materials on attorney-client privilege grounds.
- Universal moved to compel, arguing Lenz waived privilege by discussing attorney-related matters with third parties in three areas:
  - Lenz’s motive for filing suit, discussed in emails to friends and family and on her blog;
  - EFF’s legal strategy, which Lenz discussed with online contacts (which Lenz characterized as similar to telling someone she hired a lawyer); and
  - specific factual assertions Lenz conveyed to friends (for example, statements characterizing Prince’s role and alleged settlement posture).
- Universal also pointed to Lenz’s blog statements that, in Universal’s view, conflicted with allegations in the complaint (including statements suggesting the case was “not” a fair-use case).
- The court heard argument on whether, and to what extent, these third-party communications required disclosure of otherwise privileged attorney-client communications.

## Issues

1. Did Lenz’s emails and blog communications with nonlawyers waive the attorney-client privilege as to related attorney-client communications?
2. If privilege was waived, how far did the waiver extend—only to the specific communications disclosed, or more broadly to the same subject matter?
3. Could Universal compel discovery into EFF’s litigation strategy where Lenz discussed the case publicly, or were those discussions too general to constitute waiver?

## Decision

- The court granted Universal’s motion to compel in part and denied it in part.
- The court held that voluntary disclosures by Lenz to third parties could waive attorney-client privilege to the extent those disclosures revealed, repeated, or materially summarized attorney communications or legal advice.
- The court limited any waiver to the topics and communications actually put into circulation by Lenz’s third-party statements, rather than ordering blanket disclosure of all attorney-client communications.
- The court rejected attempts to use alleged waiver as a basis for unrestricted discovery into counsel’s broader litigation strategy, permitting discovery only where Lenz’s own disclosures made it unfair to withhold related attorney-client communications.
- The court required production of certain materials and/or testimony within the narrowed waiver scope, while allowing Lenz to maintain privilege over other attorney-client communications not opened by her third-party disclosures.

## Legal Principles

- Attorney-client privilege is generally waived when the client voluntarily discloses privileged communications to third parties, because confidentiality is a core requirement of the privilege.
- A waiver may extend beyond a single document to related communications on the same subject when needed to prevent selective disclosure that would mislead the factfinder or unfairly disadvantage the opposing party.
- Not every public or third-party discussion about a lawsuit waives privilege; communications that merely reference the existence of counsel or speak in general terms may not reveal legal advice.
- Courts may tailor discovery orders to confine production to the minimum scope required by any waiver, preserving privilege for communications not fairly placed at issue.

## Conclusion

In this discovery ruling, the court treated Lenz’s third-party emails and blog statements as potential, but limited, waiver of attorney-client privilege: where Lenz’s communications disclosed or characterized attorney advice, fairness allowed Universal to obtain related attorney-client communications, but the court declined to open the door to wholesale discovery of privileged materials or EFF’s broader litigation strategy.


Lenz v. Universal Music Corporation, No. C 07-03783 JF (PVT) (2010)