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

Mar. 25, 2022 UPDATE: B. Ford and M. Bergen, Google Disputes DOJ Claim It Hid Documents in Lawyer Emails (bloomberglaw.com) (Mar. 24, 2022).

Alphabet Inc.’s Google is pushing back on U.S. Justice Department claims that it improperly used attorney-client privilege to conceal documents in the government’s monopoly lawsuit against the company.

“None of the emails that Plaintiffs attach to their motion evidences a bad-faith scheme to hide documents,” Google said in a court filing Thursday. “Most involve Google’s contractual negotiations with business partners, a subject on which employees would appropriately need and desire legal advice from in-house counsel.”

Google responded that the DOJ claims were “baseless.” It stated that “outside and contract attorneys spent over 21,000 hours pouring over company communications to produce documents that weren’t covered by attorney-client privilege….”  Id.

Google shared slides showing its information governance policy: “One slide recommends considering how a message would look on the front page of the New York Times before sending. Another warns that ‘there are no magic words that will always make a document privileged.’” Id.

To repeat – regardless of the outcome, the dispute underscores the importance of information governance.

ORIGINAL POST:

An information governance policy has led to a privilege dispute according to a post by John Holland, Google Accused by DOJ of Hiding Behind Sham Privilege Claims (bloomberglaw.com) (Mar. 22, 2022).  See also Doug Austin, Google Used Privilege Designations to Hide Emails, Says DOJ (ediscoverytoday.com) (Mar. 23, 2022).

Mr. Holland reports that “Google created its ‘Communicate with Care’ program around 2015 with instructions on how to handle sensitive information, including advice on adding company lawyers to emails as a way to make the information confidential. In many cases the attorneys never responded or weighed in on whether the information should be protected by attorney-client privilege, the government filing alleges.”

The Justice Department has challenged the policy: “’For years, Google has systematically trained its employees to camouflage ordinary course business documents to look like privileged discussions,’ DOJ lawyers wrote.”  Id.

Google’s denial stated: “Just like other American companies, we educate our employees about legal privilege and when to seek legal advice. And we have produced over four million documents to the DOJ in this case alone.”  Id.

Regardless of the outcome, the dispute underscores the importance of information governance.