Camenisch v. Umpqua Bank

Background

This was a discovery dispute concerning Facebook messages exchanged between the named plaintiffs and proposed class members. The court reviewed various messages privately, in camera, to determine whether attorney-client privilege protected them from disclosure.

Reasoning

Attorney-client privilege protects confidential communications made for the purpose of obtaining or providing legal advice. The court concluded that the message authors did not have a reasonable expectation that their communications would remain confidential.

Most of the messages were posted in Facebook groups that were not open to the public, but administrators warned members that people who were not investors in PFI or PISF—and therefore were not proposed class members—might be present. The groups had 771, 414, and 196 members. The court found that the groups’ size and the absence of assurances that posts would remain private created substantial risks that information could be shared with third parties.

Administrators in two groups also stated that they were not a law firm and could not provide legal advice. The court viewed this warning as signaling that the groups were not intended to replace attorney-client consultations and that shared information was not privileged. The direct messages likewise contained no confidentiality warnings and included nonlegal subjects such as work, a new puppy, and blocking objectionable Facebook posts. The court found that this informal mixture of legal and personal topics did not imply confidentiality.

Ruling

Judge Alex G. Tse held that the Facebook messages reviewed in camera were not protected by attorney-client privilege. The court ordered the plaintiffs to produce the messages by August 9, 2022.