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

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Google’s “communicate with care” program has garnered a lot of attention.[1] It allegedly instructed employees to label any written communications on a certain topic as privileged and send them to in-house counsel.  The Department of Justice sought sanctions and an order compelling disclosure, asserting that the policy was pretextual. Google replied that the program was legitimate training material that accurately described the scope of the privilege. The District Court entered an order on May 12, 2022. It denied the motion but ordered specific privilege review.

Law360 reports that: “In addition to requesting a list of precedent, Judge Mehta had ordered Google to submit a random sampling of about 1 % of the roughly 21,000 silent-attorney emails over which it continues to claim privilege.”  B. Koenig, “No Sanctions for Google’s ‘Privilege’ Labeling” (Law 360 May 13, 2022).  Mr. Koenig wrote that: “At the heart of the DOJ’s arguments are the tens of thousands of silent-attorney emails the department says should now be forcibly disclosed writ large, without safeguards.” Id.

However, while ordering certain privilege review, the Court denied the government’s motion.  On May 12, 2022, the Hon. Amit P. Mehta entered the following minute order in U.S. v. Google LLC, No. 1:20-cv-03010 (D.D.C.):

For the reasons stated during the status conference held on May 12, 2022, 317 326 Plaintiffs’ Motion to Sanction Google and Compel Disclosure of Documents Unjustifiably Claimed by Google as Attorney-Client Privileged is denied. Google is ordered, however, to ensure that all of the “silent-attorney emails” at issue in the Motion have been re-reviewed to the same extent as the sample of 210 emails provided to the court for its in camera review. Signed by Judge Amit P. Mehta on 5/12/2022. (lcapm2) (Entered: 05/12/2022). [emphasis added].

UPDATE: See The Sound of “Silent Attorneys”: DOJ Alleges Google Fakes Attorney-Client Privilege by CCing Lawyers Who Never Respond | Proskauer – Minding Your Business & More Attorney News – world news (


[1] For more on this case, see Information Governance – Mis(?)-Labeling Documents as Privileged (Part III), and Information Governance – Mis(?)-Labeling Documents as Privileged.