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Jon Brodkin – Mar 22, 2022 7:15 pm UTC
The US Department of Justice and 14 state attorneys general yesterday asked a federal judge to sanction Google for misusing attorney-client privilege to hide emails from litigation.
“In a program called ‘Communicate with Care,’ Google trains and directs employees to add an attorney, a privilege label, and a generic ‘request’ for counsel’s advice to shield sensitive business communications, regardless of whether any legal advice is actually needed or sought. Often, knowing the game, the in-house counsel included in these Communicate-with-Care emails does not respond at all,” the DOJ told the court. The fact that attorneys often don’t reply to the emails “underscor[es] that these communications are not genuine requests for legal advice but rather an effort to hide potential evidence,” the DOJ said.
The DOJ made its argument in a motion to sanction Google “and compel disclosure of documents unjustifiably claimed by Google as attorney-client privileged” and in a memorandum in support of the motion. “The Communicate-with-Care program had no purpose except to mislead anyone who might seek the documents in an investigation, discovery, or ensuing dispute,” the DOJ alleged.
CCing lawyers is a common practice, but the DOJ says Google took it to an “egregious” level. “Google’s institutionalized manufacturing of false privilege claims is egregious, spanning nearly a decade and permeating the company from the top executives on down,” the DOJ said.
The practice “continued unabated after the company was on notice of the Department of Justice’s investigation and even after the filing of the complaint in this action,” the DOJ said. The DOJ also said, “it is well settled that copying an attorney does not confer privilege” on its own.
The new motion and memorandum are part of an antitrust suit the DOJ and state attorneys general filed in October 2020. In the suit, the government plaintiffs alleged that Google is “unlawfully maintaining monopolies in the markets for general search services, search advertising, and general search text advertising in the United States through anticompetitive and exclusionary practices.” The case is in US District Court for the District of Columbia.
The DOJ said in yesterday’s motion that Google’s Communicate-with-Care program shields communications that are relevant to the government’s allegations:
In 2016, Google instructed employees to create artificial indicia of privilege for all written communications related to revenue-share agreements and Mobile Application Distribution Agreements (MADAs), the exclusionary agreements at the heart of this action. Google reiterated those instructions after the Department of Justice issued its first Civil Investigative Demand in the investigation preceding this case. The Court should, therefore, sanction Google for its deliberate and deceptive misuse of the attorney-client privilege and order the company to produce, unredacted, all emails between non-attorneys where included in-house counsel did not bother to reply, indicating that any request for legal advice was most likely a pretext.
The 2016 training was held “after the European Commission opened a formal investigation into Google’s search-distribution practices on Android,” the DOJ said. Google issued similar instructions after the DOJ began investigating, and the “strategy worked. Google’s outside counsel often accepted Google employees’ artificial claims of privilege at face value. After Plaintiffs’ extensive efforts to uncover and challenge erroneous privilege claims, Google’s outside counsel eventually deprivileged tens of thousands of documents initially withheld or redacted on the basis of privilege,” the DOJ said.
Google responded in a statement to Axios, saying, “Our teams have conscientiously worked for years to respond to inquiries and litigation, and suggestions to the contrary are flatly wrong. Just like other American companies, we educate our employees about legal privilege and when to seek legal advice. And we have produced over four million documents to the DOJ in this case alone—including many that employees had considered potentially privileged.” We contacted Google today and will update this article if the company provides any further response.
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