Google Routinely Hides CCing Lawyers’ Dispute Emails, DOJ Alleges

Enlarge / Google CEO Sundar Pichai uses his phone during the Allen & Company Sun Valley conference on July 12, 2018 in Sun Valley, Idaho.

The US Department of Justice and 14 state attorneys general yesterday asked a federal judge to sanction Google for abusing attorney-client privilege to hide emails from litigation.

In a program called “Communicating with Care,” Google trains and directs employees to add an attorney, a privilege tag, and a generic “request” for attorney’s advice to protect sensitive business communications, whether legal advice is actually needed or requested. Often, knowing the game, the in-house attorney included in these care communication emails does not respond at all,” the Department of Justice told the court. The fact that lawyers often do not respond to e-mails “underlines[es] that these communications are not genuine requests for legal advice, but rather an effort to hide potential evidence,” the Justice Department said.

The DOJ presented its argument in a motion to sanction Google “and compel the disclosure of documents improperly claimed by Google as a preferred attorney-client” and in a memorandum supporting the motion. “The Connecting Care program had no purpose other than to mislead anyone who might request the documents in the context of a subsequent investigation, discovery or dispute,” the Department of Health alleged. Justice.

CCing lawyers is commonplace, but the DOJ says Google has taken it to a “blatant” level. “Google’s institutionalized fabrication of false privilege claims is egregious, spanning nearly a decade and permeating the company from the top executives down,” the DOJ said.

The practice “continued unabated after the company was made aware of the Justice Department’s investigation and even after the complaint was filed in this action,” the Justice Department said. The Justice Department also said, “It is well established that an attorney’s copy does not confer privilege” per se.

DOJ: Emails Relevant to Google Search Monopoly

The new motion and brief are part of an antitrust lawsuit the Justice Department and state attorneys general filed in October 2020. In the lawsuit, government plaintiffs alleged that Google “unlawfully maintains monopolies on 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 the United States District Court for the District of Columbia.

The Department of Justice said in yesterday’s motion that Google’s Communicate-with-Care program protects communications relevant to the government’s allegations:

In 2016, Google instructed its employees to create artificial indicia of privilege for all written communications related to revenue-sharing agreements and mobile application distribution agreements (MADA), the exclusion agreements at the heart of this. stock. Google reiterated those instructions after the Justice Department issued its first request for a civil inquiry in the investigation leading up to this case. The Court should therefore sanction Google for its willful and misleading use of solicitor-client privilege and order the company to produce, without redaction, all emails between non-lawyers when included in the company did not bothered to respond, indicating that any request for legal advice was most likely a pretext.

The 2016 formation took place “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 Justice Department began investigating, and the “strategy worked.” Google’s outside attorneys have often accepted artificial claims of privilege by Google employees at face value. After extensive efforts by plaintiffs to uncover and challenge the erroneous claims of privilege, Google’s outside counsel ultimately deprived tens of thousands of documents originally withheld or redacted on the basis of privilege,” the dojudicator said.

Google responded in a statement to Axios, saying, “Our teams have worked diligently for years to respond to inquiries and disputes, and suggestions to the contrary are completely false. Like other American companies, we educate our employees about legal privilege and when to seek legal advice. And we produced more than four million documents to the Justice Department in this case alone, including many that employees had considered potentially private.legs. We reached out to Google today and will update this article if the company provides an additional response.

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