Ninth Circuit Addresses Interesting Internet Privilege Issue

September 14, 2005

The increased use of internet communications generates unique privilege issues. For instance, most law firms use a disclaimer on their web sites and other electronic communications indicating that they are not providing legal advice and not creating an attorney-client relationship.

In Barton v. United States District Court, 410 F.3d 1104 (9th Cir. 2005), a plaintiff’s law firm hoped to attract plaintiffs to sue GlaxoSmithKline after using its product Paxil. The firm’s internet questionnaire indicated clearly that those providing factual information to the law firm were not asking for legal advice and “not forming an attorney-client relationship by submitting this information.” Id. at 1107. GlaxoSmithKline later sought production of the factual information the plaintiffs included in the questionnaire (to see if it matched later discovery responses). The district court agreed (based on the plaintiffs’ law firm’s own language), but the Ninth Circuit granted a writ of mandamus and reversed. The court explained that “[t]he questionnaire is ambiguous, but the plaintiff should not be penalized for the law firm’s ambiguity.” Id. at 1110.

This case presents an interesting twist on the normal situation – in which law firms use disclaimers to avoid an attorney-client relationship.