The court in the infamous “Dancing Baby Case” ruled that the plaintiff waived the attorney-client privilege by discussing the case in emails, chat sessions, and blogs.
Plaintiff Stephanie Lenz filed the suit after Universal Music demanded that YouTube take down a short video of her toddler dancing to a Prince song owned by Universal. Lenz, who is represented by the Electronic Frontier Foundation, alleged that Universal knew that the video was a non-copyright infringing fair use and that the record company’s actions violated her First Amendment rights.
The plaintiff had discussed her motives for pursuing the action, legal strategies, and factual allegations. Some comments indicated that EFF had a longstanding grudge against Universal and planned a “publicity blitz.” Others discussed the decision to sue in federal court to avoid a state SLAPP (Strategic Lawsuit Against Public Participation) suit and her hope that “the hit counter on my video [would] go ding ding ding.” The court held that although those communications could constitute waivers of the privilege, they were not relevant to the case, and further discovery on those topics would not be permitted.
However, the court held that Lenz’s statements about her attorneys’ desires to use the case to clarify a previous Ninth Circuit copyright decision were relevant. The court also allowed discovery of communications regarding some of Lenz’s factual allegations that she disclosed to outside parties. The waiver of the privilege extends not only to the specific communications that Lenz shared with others but also to “all other such communications on the same subject.”