Google Improperly Invoked Legal Privilege To Withhold Emails, Government Claims

In a U.S. District Court filing, the Justice Department said Google improperly invoked legal privilege to protect sensitive internal communications, a practice it says has been going on for years.

“For nearly a decade, Google has trained its employees to use attorney-client privilege to hide ordinary business communications from discovery in litigation and government investigations,” the Justice Department said.

He further asserted that “Google instructs its employees to add an attorney, a privilege tag, and a generic ‘request’ for attorney’s advice to any sensitive business communications that employees or Google may wish to protect from discovery.”

Google said its practices are above the fray and comparable to those of other major companies.

“Like other American companies, we educate our employees about legal privilege and when to seek legal advice,” a Google spokesperson said in a statement. “We have produced more than four million documents for the [Department of Justice] in this case alone, including many that employees had considered potentially privileged.

Lawyers said eligibility for solicitor-client privilege requires more than copying a corporate lawyer on an email or asking for general legal advice.

“The historical purpose of this privilege is to give lawyers the opportunity to engage in candid conversations with the client in order to deter misconduct – to prevent it before it happens – not to protect misconduct from disclosure,” said Michele DeStefano, a law professor at the University of Miami.

The Justice Department filing came as part of the government’s antitrust lawsuit against Google, in federal district court in Washington, D.C. The Justice Department and state attorneys general argue that Google maintained illegal monopolies on the search and search advertising markets.

The government is now asking the judge at a minimum to order Google to hand over all requested emails and other communications where a lawyer for the company was copied and did not respond.

“The court should sanction Google and order full production of the undisclosed and redacted emails where an in-house attorney was included in a non-lawyer communication and did not respond,” the government wrote.

“Alternatively, the Court should consider these silent emails from lawyers not privileged and order their production immediately. »

Monday’s lengthy government filing contained several instances of what the Justice Department considers to be examples of Google’s inappropriate tactics.

One employee wrote in a 2020 email: “CLIENT PREFERRED ATTORNEY. (Added Tristan for legal advice, since I’m about to use trigger words.) The rest of the email is redacted.

“Send me in a privileged email what you think we should do pls,” one employee wrote in another chain of emails in 2020.

When an employee wrote “PRIVILEGED” in a thread, another employee replied, “I think you need a lawyer on the thread to actually make this privileged. »

The Justice Department said the practice had reached the highest levels of the company, citing a 2018 email about an upcoming media article from then-Google CEO Sundar Pichai, who is now also Alphabet CEO, to YouTube CEO Susan Wojcicki:

“Preferred, confidential counsel, Kent pls advice,” Mr Pichai wrote.

Google’s general counsel at the time was Kent Walker. Mr Walker “apparently never replied to the thread”, according to the government filing. “This email was initially withheld by Google and only deprived after [the government] disputed.

In another email cited in the filing, “Can you gather a favored deck for this group to preview and then send to Sundar? Thank you.

The government filing states that “generic statements such as ‘[attorney,] please advise”, “add legal” or “add [attorney] for legal advice” appear in thousands of Google documents.

This story was published from a news agency feed with no text editing

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