• Who’s Afraid of the Big Bad Privilege?
  • March 4, 2011 | Author: Elisabeth A. Moriarty
  • Law Firm: Greenberg Glusker Fields Claman & Machtinger LLP - Los Angeles Office
  • You may not know it to look at me, but I have a very macabre sense of humor. I adore the books of Edward Gorey and, in particular, The Gashlycrumb Tinies, a spot-on and (for those who are into tragic juvenile demise) hilarious parody of children’s ABC books in which each of the rhyming couplets recounts various unusual ways in which children have met ghastly fates: “A is for Amy who fell down the stairs. B is for Basil assaulted by bears. C is for Clara who wasted away. D is for Desmond thrown out of a sleigh...” (Not that I’m ever bored at work, but I’ve had a photocopy of “N” posted on my computer for years: “M is for Maud who was swept out to sea. N is for Neville who died of ennui.”)

    I’m also a huge fan of Shockheaded Peter, a nightmarish and (again, for those who love young children meeting ironic fates-should my own daughter be concerned by this?) hilarious spectacle/stage production based on a 19th Century German book of children’s cautionary tales by Heinrich Hoffman, in which rude and naughty children all meet gruesome, yet well-deserved ends. Take, for example, “Fidgety Phil,” the tale of a boy who refuses to sit still at the dinner table and is impaled by cutlery when he pulls off the tablecloth at dinnertime. Or “Snip Snip,” in which an incessantly thumb-sucking boy bleeds to death after an evil tailor cuts off his thumbs (his mother reacts simply by saying toldya so!). The last line of virtually every song concludes with the matter-of fact sentiment: “And he was DEAD.” “And she DIED.” The end. You can imagine what happens in “The Dreadful Story of Harriet and the Matches”...

    Well, remember the Troubling Tale of the Two-Steppin’ Toddler? No, it isn’t in the Second Act of Shockheaded Peter, but it certainly qualifies as a Litigation Cautionary Tale in my book.

    This Dreadful Story — or, as it is more commonly known in legal circles, the Lenz v .Universal case — began with a dancing baby. We’ve covered this ground before, but let’s review the highlights:

    Over three years ago, adoring mom Stephanie Lenz posted a 29-second YouTube clip of her little boy dancing to Prince’s “Let’s Go Crazy.” A few months later, Universal Music had the video removed, claiming copyright infringement. Outraged to be denied her right to share home videos with friends, family, and hundreds of thousands of Internet voyeurs, Lenz teamed up with the Electronic Frontier Foundation and filed suit against Universal, claiming that her video made fair use of Prince’s song and that Universal had misrepresented its DMCA takedown claim. And last time we checked in with you, our faithful readers, Mega Mom was winning. Summary judgment motions had been filed, and we predicted a conclusion by the winter holidays.

    Then things got nasty.

    In a filing last fall, Universal claimed that Lenz had “disclosed repeatedly — in e-mails to friends and family, Gmail chats and on her personal blog the substance of what she and her lawyers have discussed.” Universal suggested that these privilege-busting disclosures revealed that she suffered no damages from Universal’s conduct, and raised serious questions about Lenz’s motivation (or lack thereof) for filing the case in the first place. The court ruled that Lenz had waived her attorney-client privilege as to certain issues, and Mom was ordered to hand over all documents relating to discussions between her and her lawyers regarding the reasons she filed her suit and information about her legal strategies.

    I believe the jargonistic legal response to that would be, ouch.

    And it gets worse: in the months since the ruling, Lenz has only turned over 80 documents. Universal contends this is suspiciously few documents for a three year old case; now they’ve asked for Lenz to be found in contempt of court. (Lenz and her lawyers say that they mostly communicated by phone, which is, they say, why Lenz has produced fewer emails than I’ve received in the time it took me to write this parenthetical.) In legal terms, this makes her the equivalent of poor Conrad (of “Snip Snip”), whose thumbs were unceremoniously removed by the “great, long-legged scissor man.”

    And so, the moral of this pitiful story is, if you are in litigation, keep your mouth shut! Don’t blog about your legal strategy. Don’t email Uncle Sheldon about the problems in your case. And, as we have (in effect) warned — twice — don’t discuss your legal damages on Facebook.

    And now I’m predicting the last line of this sad story: “And the case was DEAD.”