Google Used Privilege

Google Used Privilege Designations to Hide Emails, Says DOJ: eDiscovery Trends

Hat tip to Debbie Reynolds for this story! According to a report by the New York Post, the Department of Justice (DOJ) says that Google used privilege designations to hide emails from federal scrutiny and other possible legal proceedings.

The article (Google CEO hid emails from feds with phony ‘attorney-client’ claims: DOJ, written by Theo Wayt) states that the Justice Department claims that top Google executives including CEO Sundar Pichai used phony claims of “attorney-client privilege” to hide thousands of emails from federal scrutiny.

Executives including Pichai participated in the search giant’s internal practice, which was called “Communicate with Care,” and may have unfairly “camouflaged” thousands of documents from scrutiny, the department said in a Monday filing in Washington, DC, federal court.

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“Google has explicitly and repeatedly instructed its employees to shield important business communications from discovery by using false requests for legal advice,” attorneys for the Justice Department wrote.

“Specifically, Google teaches its employees to add an attorney, a privilege label, and a generic ‘request’ for counsel’s advice to any sensitive business communications the employees or Google might wish to shield from discovery.”

In one such example from 2018, Pichai emailed YouTube CEO Susan Wojcicki to discuss an upcoming press story.

“Attorney Client Privileged, Confidential,” Pichai wrote, copying Google’s then-general counsel Kent Walker. “Kent pls advise.”

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Yet Walker apparently never replied to the thread, which the Justice Department said was “directed to a non-attorney” about “a non-legal press issue.”

The email was initially withheld by Google in an ongoing antitrust case and was only produced after the Justice Department challenged it, the department said.

“In these email chains, the attorney frequently remains silent, underscoring that these communications are not genuine requests for legal advice but rather an effort to hide potential evidence,” the Justice Department said.

The federal government’s ongoing antitrust suit, which was filed by President Donald Trump-appointed Attorney General Bill Barr in 2020, accuses the search giant of establishing “unlawful monopolies” in the online search and advertising industries.

In Monday’s filing, the Justice Department asked the federal judge hearing its suit against Google to order the company to turn over all requested emails where an attorney was copied but never responded.

Google denied wrongdoing in a statement to The Post and said it has already turned over more than 4 million documents in the Justice Department’s antitrust case.

“Our teams have conscientiously worked for years to respond to inquiries and litigation, and suggestions to the contrary are flatly wrong,” a Google spokesperson said. “Just like other American companies, we educate our employees about legal privilege and when to seek legal advice.”

DOJ’s claim that Google used privilege designations to hide emails is a claim that happens in a lot of cases, including many that I’ve covered over the years. Courts use in camera review to settle some of those disputes, but not every court grants a request for in camera review (here are two cases which didn’t), even when they’re not being asked to review that many documents.

So, what do you think about DOJ’s claim that Google used privilege designations to hide emails? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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