The Defendant, apparently well versed in social-media, requested “[a] complete copy of all communications” between specific individuals and the Plaintiff sent on “Facebook, in a blog, via e-mail, text message, voicemail, letter, facsimile, or anywhere else.” The Defendant requested the ESI be produced in their “original, unaltered form.” Armstrong v. Shirvell, 2012 U.S. Dist. LEXIS 65697, 5 ( E.D. Mich. May 10, 2012).
The Plaintiff, a college student, objected to producing communications with his father, because his father was an attorney and counseled him on privacy expectations. The Plaintiff believed that his communications with his father to be privileged and protected from disclosure. Armstrong, at *6.
The Defendant countered that the father was a witness to the case who tried to gain access to the Defendant’s Facebook account “by posing under a fake name.” Armstrong, at *13.
The Court held there was an attorney-client relationship between the Plaintiff and his father. As such, the Plaintiff did not need to file a response to the Defendant’s discovery request. Armstrong, at *14-15.
Bow Tie Law
Just as doctors have family members who call them with health related questions, the same thing happens to lawyers. The issue can become tricky when a question turns into legal advice and your aunt is suddenly a client.
It is very well established that email communications with an attorney seeking legal advice, or the reply giving legal advice, are protected under the attorney-client privileged. It is not a stretch to see a college age son texting his mother the attorney for legal advice. Granted, I am confident no parent wants to see a text seeking legal advice from his or her child at any age.
However, questions seeking legal advice that are public on social media profiles, such as a public wall post from a college student to a parent attorney, arguably were not asked in confidence. When it comes to the attorney-client privilege and modern communications, one must ask, “How was the communication made?” For example, was the text message seeking legal advice sent from a work issued smartphone with no expectation of privacy?
We hold the attorney-client privilege with the upmost reverence for those seeking and providing legal advice. However, those seeking and providing advice must not inadvertently breach the privilege by communicating in public forums where there is no expectation of privacy.