Dancer’s Facebook Messages With Opt-In Class Members are Protected Work Product

A group of exotic dancers in New York recently found themselves partially exposed — well, their Facebook messages, that is. A federal judge in In re Penthouse Executive Club Compensation Litigation, 10-CV1145 (KMW) (S.D.N.Y May 10, 2012) decided that one of the plaintiff-dancer’s Facebook communications with non-party-dancers about joining the lawsuit were not protected from disclosure, but that Facebook communications between the plaintiff-dancer and opt-in plaintiffs were protected from disclosure. The Court’s application of the well-established work product doctrine and common interest rule to social media communications reminds lawyers to exercise caution when using social media for discovery purposes and to warn their clients to similarly proceed with caution.

In a putative class action lawsuit filed by former entertainers at the Penthouse Executive Club against the club and its owners and officers, alleging violations of the Fair Labor Standards Act and New York Labor Law, a discovery dispute arose regarding the production of communications between the plaintiffs and non-party entertainers on Facebook. Specifically, the defendants sought production of Facebook messages between named plaintiffs and opt-in plaintiffs, and those between named plaintiffs and potential class members. While the plaintiffs relied upon the work product doctrine and the common interest rule to withhold production of the Facebook messages, the defendants argued that the messages were not communications by or with counsel, so the work product doctrine and/or common interest rule were inapplicable.

After an in camera review of the Facebook messages between the plaintiff-dancer and non-parties, and those between the plaintiff-dancer and opt-in plaintiffs, the Honorable Kimba M. Wood, U.S.D.J., held that the Facebook messages were indeed “correspondence” that constituted “documents and tangible things” for consideration of protection under the work-product protection. The Judge explained that the Facebook messages between the plaintiff-dancer and opt-in plaintiffs were “descriptions of conversations with Plaintiffs’ counsel regarding litigation strategy,” which were “not correspondence prepared in the ordinary course of business or personal life, but rather were directly prompted by the litigation and prepared because of the action at bar,” so they were prepared in anticipation of litigation. Moreover, Judge Wood rejected the defendants’ assertion that the work-product doctrine was inapplicable to the communications because, she explained, the doctrine is broader than the attorney-client privilege and the Facebook messages were prepared by a party and sent to the opt-in plaintiffs “because of the litigation.” As such, Judge Wood held that the Facebook messages between the plaintiff-dancer and opt-in plaintiff-dancers were protected from production by the work product doctrine.

Next, the Judge considered whether the common interest doctrine also protected the production of any of the Facebook messages. She explained that the common interest doctrine protects joint defense efforts to keep communications between counsel for represented parties, or non-parties with a common interest in the outcome of the litigation, confidential. She elaborated that because the common interest doctrine is an extension of the attorney-client privilege, for it to apply a communication must meet the other elements of that privilege. The Facebook messages between the plaintiff-dancer and the non-party dancers — both the opt-ins and the others — simply did not meet those criteria. Judge Wood held, therefore, that the Facebook messages between the plaintiff-dancer and all non-party exotic dancers did not qualify for protection under the common interest doctrine because they were not attorney-client privileged.

Judge Wood’s ruling emphasizes what has been addressed numerous times in posts on this blog — attorneys must remember that social media communications may be subject to discovery and to take care when using social media or directing their clients to use social media for discovery purposes.

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