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.