Information Governance – Mis(?)-Labeling Documents as Privileged (Part III)

What is a Document? (Part III)
April 4, 2022
Ethics: More Remote Misconduct
April 10, 2022

When the Department of Justice alleged that Alphabet Inc.’s Google was camouflaging ordinary documents as privileged, I – and many others – posted abut information governance.  When Google responded that the government’s allegation was “baseless” and that it had spent 21,000 hours on privilege review, I also reported that.  Information Governance – Mis(?)-Labeling Documents as Privileged.

We now have Part III.  Malathi Nayak, “Google Poised to Dodge Sanctions in Records-Hiding Row With U.S.,” (Bloomberg Law Apr. 8, 2022).

Bloomberg reports that the District Judge described the “140,000 so-called ‘silent attorney’ emails” that were withheld as “stunning.”  However, the Court said that the recent production of 9,000 emails after a second look “reflects diligence.”  Id.

Bloomberg reports that the government had asserted that 21,000 emails were wrongfully withheld.  Google’s attorney said that it had acted in good faith and “said there could have been ‘mistakes’ made by the legal team that reviewed emails.”

The article states that the District Judge did not issue a ruling during the hearing, but said: “As eyebrow-raising as the practice may be, I just don’t know what I can do about it,” regarding sanctions. Bloomberg explained:

A federal judge said Friday he didn’t have clear authority to punish the company over its policy that employees copy company lawyers on emails when discussing competition issues, which the U.S. government claims Google uses as a ploy to avoid disclosing records in litigation.

Docket Entry 337 in U.S. v. Google, Inc., Case No. 1:20CV03010 (D.D.C.), entered on April 8th, states in part that: “For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. … The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days.”