Slowly Stripping Away Privacy Rights?

We have been starting to see more court decisions on the issue of whether private social media accounts can be discovered by a party in a lawsuit.   Most of the cases, however, have been in the context of a personal injury dispute (e.g., car accident, slip and fall, etc.).   Finally, a new case involving the discovery of social media in an employment lawsuit has now fallen into our lap.

In In re Penthouse Executive Club Compensation Litigation (federal court in New York), a group of former “entertainers in the Penthouse Executive Club” brought a wage and hour lawsuit against their employer.   In what was nothing short of naked ambition, the employer requested that the court compel one of the Plaintiffs to produce nine pages of Facebook messages that she exchanged with other Plaintiffs, and with non-parties, about the possibility of others joining the suit.  

Interestingly, the exotic nature and characteristics of social media did not really factor into the reasoning of the decision to partially grant (and partially deny) the employer’s request.   Indeed, the holding was fairly anti-climactic, with the privilege and work product doctrine analysis the same as it would have been if any other non-social media or non-electronic document had been at issue.   

District Judge Kimba Wood took the pole position on this issue, and made the following rulings:  

  • As a threshold matter, Facebook messages constitute “correspondence”, which in turn are within the definition of “documents and tangible things” that can be shielded from discovery as protected “work product”.


  • Facebook messages sent by Plaintiff to non-parties who might join the case were “prepared in anticipation of litigation,” and, therefore, protected from discovery as “work product” because they were “descriptions of conversations with Plaintiffs’ counsel regarding litigation strategy, as well as responses to questions about the lawsuit.”   The messages were not, the court noted, “prepared in the ordinary course of business or personal life.”


  • Sending the Facebook messages to non-parties did not constitute a waiver of the work product privilege because the recipient had a similar interest as Plaintiff that was not aligned with the Plaintiff’s adversary in the lawsuit.


  • However, Facebook messages sent by non-parties to the Plaintiff were not protected by any privilege, and had to be produced to the employer.

Employer Take Away:   What should you as an employer take away from this development?   

It is worth the reminder that there may be times when your company can discover social media messages and posts that may be helpful to your lawsuit.   It is also worth remembering that the flip side remains true as well:  what you and your employees write and post through social media (particularly on company owned or sponsored sites) may be discoverable by the other side, and could potentially prove damaging to your case.

Bottom line is that you should train your employees about the virtues and perils of “speaking” through social media, and continue to stress the notion that the ease and informality of social media does not eliminate the possibility that what is said could be used against the company.    By continuing to train your employees in that regard, you will maximize the likelihood that any of your lawsuits will have a happy ending.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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  1. […] Blog, in what he writes in nothing short of “naked ambition,” Michael Schmidt discusses a social-media discovery battle in a wage-and-hour lawsuit filed by a group of former “enterta…. Click through to find out how this got resolved. [Note: I used all of my will power — all of […]

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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