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Penthouse Case Sheds Light on Discoverability of Social Media Messages

Created on September 7, 2012

By: Bob Rohlf, Esq., E-Discovery Counsel, Exterro

The fact assertions in a case from the Southern District of New York provide a titillating read, but a recent discovery order proceeding from that case illustrates solid judicial reasoning in grappling with the new technologies of social media.

The case In re: Penthouse Executive Club: Compensation Litigation arose from complaints by exotic dancers that the Penthouse Executive Club violated labor laws by failing to pay for overtime. The strippers also complained that, as a result of pinching dancers' tips and charging dancers fees to entertain customers, the Club often failed to pay even minimum wage.

One of the plaintiffs exchanged Facebook messages concerning the case with other plaintiffs and with unrelated parties. Defendants sought to compel production of nine of the messages. Plaintiffs' attorneys countered by claiming that the documents were privileged under the work product and common interest rule privileges.

Facebook messaging and other social media have been at the heart of many discussions as the legal profession has struggled to figure out what to do with them. A communications method that is a mainstay for most young people and even many older adults is still often viewed as exotic by a profession that has been somewhat overwhelmed by the digital age.

Judge Kimba Wood is among those judges who understand that digital communication is a change to the form, but not the substance of a message. Declaring that the Facebook messages in this case equate to correspondence, she applied classic legal analysis to determine whether they should be granted a privileged status as requested by plaintiffs. As correspondence the messages qualified as “documents and things" accorded protection under FRCP Rule 26(b)(3). The messages at issue were prompted by the litigation and prepared by a party to the action. Passing all three tests, the Facebook messages were determined to be protected as work product. Judge Wood relied on the plain language of FRCP 26(b)(3) to dismiss Defendants' argument that privilege was not due because the communication was not between Plaintiff and their counsel.

The judge was less generous, however, when it came to the common interest rule. This rule is an extension of the attorney-client privilege, which protects confidential communications between clients and their attorneys for the purpose of obtaining legal advice. The common interest rule extends the privilege to communications between parties in a case where they share a joint defense effort. As an extension of the attorney-client privilege, the Facebook messages had to conform to all of the elements of that privilege.  Where the plaintiff communicated with other parties in the case, the common interest rule applied.  However, where the plaintiff sent communications to non-parties, the Facebook messages clearly could not pass the test.

Judge Wood's common sense handling of social media is refreshing. Rather than being distracted by the novelty of the format, she focused on the substance of the communication, found a reasonable analog, and used that analog to test for compliance with the elements of work product privilege.

From a practical standpoint, the case serves as a caution to attorneys whose clients engage in Facebook or other social media communications. Obviously social media is discoverable. Like any other standard communication format, social media communications between an attorney and his or her client will qualify for work product status. Similarly, communications between parties working a common defense in a case can qualify for this protection. However, communications with non-parties will not qualify. In many ways, Facebook is a broadcast medium. Because it is a “social" form of communicating, people tend to be more relaxed in what they say and even with whom they interact. Broadcasting case information, when sent to more than a select audience, could result in putting at risk information that would otherwise be privileged.  It would be prudent to strongly advise clients to avoid any reference to their cases when using social media.

Bob Rohlf has broad experience in law and business. With a background in business litigation and process management, Rohlf has managed business process improvement projects in a number of national and regional companies representing the transportation, energy, manufacturing, electronics, foods, and leisure sectors.