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In re Penthouse Executive Club: Can you Strip Away the Confidentiality of Litigation-Related Communications by Posting Them on Facebook?

If you are a plaintiff in a lawsuit, can you discuss the lawsuit with other plaintiffs on Facebook and keep these communications confidential?  What if the communications are between you and someone you hope will join the lawsuit but is not yet a party?  These questions were front and center before a District Court Judge in New Yorkregarding a class action wage and hour case under the Fair Labor Standards Act (“FLSA”).  In re Penthouse Executive Club Compensation Litigation involves allegations by a group of exotic dancers that the Penthouse Executive Club failed to, among other things, properly pay them overtime and their share of tips.  As often is the case with FLSA matters, the named plaintiffs converted their lawsuit into a class or collective action.  To do so, they obtained from the court the right to issue notice to other similarly situated strippers who were then able to opt in and join the class action. 

In the lawsuit, a discovery dispute arose when the Defendant, Penthouse Executive Club, sought to obtain Facebook communications between one of the named plaintiffs and (a) opt-in plaintiffs, and (b) non-parties with whom this particular named plaintiff was discussing the lawsuit.  Even though the communications between the named plaintiff and the various opt-in plaintiffs were devoid of the presence of plaintiffs’ counsel, District Judge Kimba M. Wood determined that the attorney work-product doctrine shielded these communications.  The named plaintiff apparently discussed their lawyer’s litigation strategy and responded to questions by the opt-in plaintiffs about the lawsuit.  According to the Judge, these Facebook messages were not correspondence prepared in the ordinary course of business or personal life, but rather were directly prompted by the litigation and were prepared because of it.  The attorney work-product doctrine, codified inFederal Rule of Civil Procedure 26(b)(3), provides that “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.”  It was unnecessary for plaintiffs’ counsel to be included in the Facebook communications because the work-product doctrine recognizes that attorneys rely on the assistance of others.  In turn, the doctrine protects material prepared by the attorney’s client in anticipation of or as part of on-going litigation.  As both the named plaintiff and the opt-in plaintiffs were clients of the attorney, their communications were confidential under the doctrine.

What about the communications between this named plaintiff and various non-parties on Facebook?  Here, the work-product doctrine should not apply as the non-parties are not the attorney’s client.  Plaintiffs argued then that these messages are protected under the separate attorney-client privilege through a doctrine known as the common interest rule.  The common interest rule is a mechanism to protect the confidentiality of communications passing from one party to another party, where both parties are typically represented by counsel.  For example, if a plaintiff sues an employer and an individual supervisor, both parties may participate in a joint defense where their lawyers can communicate about the case and keep their communications protected. The common interest rule is merely an extension of the attorney-client privilege.  Judge Wood explained that the attorney-client privilege protects confidential communications between clients and their attorneys made for the purpose of securing legal advice or services.  The Facebook messages between the named plaintiff and non-parties were not confidential communications between clients and their attorneys. The non-parties were not represented by counsel as they were not part of the lawsuit, but were being solicited to join it.  As these communications were not protected by the attorney-client privilege, the common interest rule did not apply and these Facebook messages were discoverable by the Penthouse Executive Club.

The practical take away from the In re Penthouse Executive Club Compensation Litigation is that Facebook can be yet another forum for parties on one side of a lawsuit, whether multiple plaintiffs or defendants, to communicate privately about their ongoing litigation.  When it comes to attempting to recruit others to join on-going litigation or to discuss a case with non-parties, what happens on Facebook does not stay confidential on Facebook.

Matthew Deffebach is a partner in the Labor and Employment Practice Group of Haynes and Boone. He is certified by the Texas Board of Legal Specialization as a labor and employment law specialist. In 2010, Law360 named him a rising star and one of 10 employment lawyers under 40 to watch. He was selected for inclusion in Texas Super Lawyers - Rising Stars Edition (2005-2010). Matthew was recognized as a Texas Super Lawyer by Texas Monthly in Employment and Labor (2010-2011).

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May 2012
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