Google creates the illusion of professional secrecy

If a request for legal advice remains unanswered, is it really a request for legal advice? According to the United States Department of Justice and several state attorneys general (“DOJ plaintiffs”) in an antitrust action against Google, USA, et. Al.c. Google (in English only, in the United States District Court for the District of Columbia, the answer to this question should be “no”, at least when the request for unanswered legal advice is part of an internal practice of company to conceal sensitive and non-privileged documents from discovery.

The Justice Department plaintiffs’ recent motion to sanction Google and compel disclosure alleges that in a program called “Communicating with Care,” Google trains its employees to create the illusion of professional secrecy by asking employees to include a lawyer, a privilege label and a generic request for legal advice in ordinary business communications, even when legal advice is not actually needed. According to Justice Department requesters, the in-house attorneys copied to these emails often do not respond to these “artificial” requests for legal advice. The Justice Department plaintiffs say the purpose of the program is to protect sensitive commercial communications from discovery by abusing attorney-client and client-client privilege, and that Google has ensured that it is engaged in this process to improperly withhold communications and agreements directly relevant to the instant action. The Justice Department plaintiffs sought sanctions and compelled disclosure of forwarded emails to legal counsel who never responded, which said “any request for legal counsel was likely very suspicious.”

Google responded that the Justice Department suspects took a slide presentation describing the “Communicating with Care” program out of context, and that “the slides provide legitimate guidance to Google employees on how to communicate with in-house attorneys.” to seek legal advice on matters with obvious legal implications”. Google alleges that Slideshow (and company practice in general) advises employees on how to properly protect privileged communications by legally labeling genuine requests for advice as privileged and including in-house counsel in emails. According to Google, it had already produced around 98,000 “silent lawyer” emails in its initial production, in which a lawyer stays on the CC line throughout an email chain without responding. Subsequently, following discussions between meetings and conferences, Google agreed to conduct a review of the “silent lawyers” emails and a product of 10,000 additional documents. The Justice Department suspects are now asking Google to produce all undisclosed or redacted communications “where an in-house attorney was included but did not respond in the chain of communication with non-attorneys,” which would require apparently another re-examination by Google of around 21,000 documents. But according to the DOJ suspects’ response, the fact that Google produced “tens of thousands” of previously withheld or redacted “silent attorney” emails “only confirms the existence, persistence and Extent of Google’s Abuse of Privilege”.

The judge issued an order shortly after the end of the parties’ presentation asking for more information before deciding on the motion and “question”[ing]whether he had the authority to sanction Google for pre-trial actions. For now, the judge has ordered the parties to identify cases supporting their positions on whether penalties can be imposed for pre-litigation conduct, and further ordered Google to produce a sample randomized 210 of 21,000 “silent lawyer” emails for closed court review. We will continue to follow this case and report on its progress.

© 2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 133

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