Google routinely hides emails from litigation by CCing attorneys, DOJ alleges

The US Department of Justice and 14 state attorneys general yesterday asked a federal judge to sanction Google for using attorney-client privilege to hide emails from litigation.

In a program called "Communicate with Care," employees are told to add an attorney, a privilege label, and a generic request for counsel's advice to shield sensitive business communications. The DOJ told the court that the in-house counsel included in these emails doesn't respond at all. The DOJ said that attorneys often don't reply to the emails because they are not genuine requests for legal advice.

The DOJ made its argument in a motion to sanction and compel disclosure of documents unjustifiably claimed by Google as attorney-client privileged and in a memo in support of the motion.

CCing lawyers is a common practice, but the DOJ says that Google took it to an egregious level.

The practice continued after the company was on notice of the Department of Justice and even after the filing of the complaint in this action, according to the DOJ.

DOJ: Emails relevant to Google search monopoly

The DOJ and state attorneys general filed an antitrust suit in October 2020. The case is in US District Court and the government alleges that Google is maintaining monopolies in the markets for general search services, search advertising, and general search text advertising in the United States through anticompetitive and exclusionary practices.

The DOJ said in yesterday's motion that the program shields communications that are relevant to the government.

In 2016, Google instructed employees to create artificial indicia of privilege for all written communications related to revenue-share agreements and Mobile Application Distribution Agreements (MADAs), the exclusionary agreements at the heart of this action. Google reiterated those instructions after the Department of Justice issued its first Civil Investigative Demand in the investigation preceding this case. The Court should, therefore, sanction Google for its deliberate and deceptive misuse of the attorney-client privilege and order the company to produce, unredacted, all emails between non-attorneys where included in-house counsel did not bother to reply, indicating that any request for legal advice was most likely a pretext.

The training was held after the European Commission opened a formal investigation into the practices of the search giant. The strategy worked after the DOJ began investigating. Artificial claims of privilege were accepted by the outside counsel for the company. The DOJ said that after extensive efforts to uncover and challenge incorrect privilege claims, the outside counsel for the company de-privileged tens of thousands of documents.

In a statement to Axios, the company said that their teams have worked for years to respond to inquiries and that suggestions to the contrary are flatly wrong. Like other American companies, we educate our employees about legal privilege. We have produced over four million documents to the DOJ in this case alone, including many that employees had considered potentially privileged.