Google Routinely Hides Emails From Litigation By CCing Attorneys, DOJ Alleges (arstechnica.com) 72
The US Department of Justice and 14 state attorneys general yesterday asked a federal judge to sanction Google for misusing attorney-client privilege to hide emails from litigation. From a report: "In a program called 'Communicate with Care,' Google trains and directs employees to add an attorney, a privilege label, and a generic 'request' for counsel's advice to shield sensitive business communications, regardless of whether any legal advice is actually needed or sought.
Often, knowing the game, the in-house counsel included in these Communicate-with-Care emails does not respond at all," the DOJ told the court. The fact that attorneys often don't reply to the emails "underscor[es] that these communications are not genuine requests for legal advice but rather an effort to hide potential evidence," the DOJ said. The DOJ made its argument in a motion to sanction Google "and compel disclosure of documents unjustifiably claimed by Google as attorney-client privileged" and in a memorandum in support of the motion. "The Communicate-with-Care program had no purpose except to mislead anyone who might seek the documents in an investigation, discovery, or ensuing dispute," the DOJ alleged.
Often, knowing the game, the in-house counsel included in these Communicate-with-Care emails does not respond at all," the DOJ told the court. The fact that attorneys often don't reply to the emails "underscor[es] that these communications are not genuine requests for legal advice but rather an effort to hide potential evidence," the DOJ said. The DOJ made its argument in a motion to sanction Google "and compel disclosure of documents unjustifiably claimed by Google as attorney-client privileged" and in a memorandum in support of the motion. "The Communicate-with-Care program had no purpose except to mislead anyone who might seek the documents in an investigation, discovery, or ensuing dispute," the DOJ alleged.
...or...they may actually be seeking advice? (Score:2)
Are we to assume that 0% of the requests are legitimate?
Quis custodiet ipsos custodes?
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Attorney-client privilege extends to ALL communications with an attorney.
Yes, but two non-attorneys communicating is NOT a communication with an attorney.
Re: ...or...they may actually be seeking advice? (Score:1)
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The US department of Justice says you are wrong.
Re: ...or...they may actually be seeking advice? (Score:1)
Off course an executive prosecution agency would disagree. What matters is what a court says the rules are. And the rules are if an attorney is part of the conversation, it is privileged.
And Google isnâ(TM)t the only corporation that uses this trick, most corporations have been doing it for decades, contact legal for anything that needs to be said that could get someone in hot water or needs to be private.
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So, setting aside the technical question of whether or not this is currently legal, I think the more important question is "should it be legal, and do we need to change the relevant law?"
It's dangerous to put limitations on attorney-client privilege, because that can lead to having to litigate every communication one has wi
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I did state "setting aside the technical question of whether or not this is currently legal".
So, assuming you agree there should be some limits on privilege, does the crime-fraud exception go far enough, and is it a practical tool against corporate abuse of privilege? I'm guessing the answer is no given that Google still sees an advantage in CC'ing its lawyers on
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"The DOJ also said, "it is well settled that copying an attorney does not confer privilege" on its own. "
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I assume this will end up with the appointment of a special master, who'll be tasked with reviewing ALL emails and determining whether or not each one is, in truth, covered by attorney-client privilege.
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Possibly, but it may also be that the DOJ can provide enough convincing evidence to cause the entire ploy to be shot down.
"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."
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By the way, I took the liberty of fertilizing your cavier
Up to a Judge to Decide (Score:2)
Attorney-client privilege extends to ALL communications with an attorney. ... No, there is nothing to see here. Google beat the system...
The fact that you agree that Google is gaming the system shows that you believe that these are clearly not communications with a lawyer but that they are just cc'ing a lawyer to "beat the system". If a judge sees the evidence in the same way that you do then I suspect they will be in serious trouble.
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Yep, it's clear that you aren't a lawyer. The test is one of "dominant purpose".
For a document to be privileged, the dominant purpose for its creation must have been for use in relation to contentious proceedings (either in existence or reasonably in contemplation).
Even under the existing test, just CC'ing a lawyer doesn't magically make an email a privileged communication.
Re: ...or...they may actually be seeking advice? (Score:2)
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What does it matter if they are legitimate requests for legal advice? Attorney-client privilege extends to ALL communications with an attorney.
Well, good, I'm glad you've simplified this then. I'll just set up my handy dandy CC-a-lawyer mailbox rule here, and magic! All of my email is instantly protected. No more sneaky corporations trying to "scan" my mail.
Hell, if we've reduced this down to an email rule, do we even need human attorneys anymore? Seems like a waste of meatsacks.
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Attorney-client privilege extends to ALL communications with an attorney.
No, it doesn't.
In fact, there are numerous circumstances where attorney-client communications are not privileged as well as instances where a person might think there is privilege, but there really isn't. Every lawyer knows this or at least should know this.
The exception that is cropping up here is that attorney-client privilege only protects communications which are primarily based on a desire to obtain legal advice. Merely cc'ing a lawyer, or having a lawyer attend a meeting, is not enough, by itself, f
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While I can't argue with XKCD, my go-to has been What Colour are your bits? [sooke.bc.ca] which gets into how programmers and lawyers may think very differently about things (in that case, copyright).
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Attorney-client privilege extends to ALL communications with an attorney.
Nope.
Generally, the attorney-client privilege does not apply to communications that seek advice on or discuss non-legal issues. To determine if a communication is privileged, a court usually focuses on its primary purpose. Communications with counsel for the purposes of seeking business advice, rather than legal advice, are not protected by the attorney-client privilege. - What does legal professional privilege not cover in your jurisdiction? [nortonrosefulbright.com]
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Naa, these days Googlers are evil fuckers openly.
Re: ...or...they may actually be seeking advice? (Score:1)
The wokest kind..
Re: ...or...they may actually be seeking advice? (Score:2)
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Are we to assume that 0% of the requests are legitimate?
Quis custodiet ipsos custodes?
No one is saying every such request should be subject to disclosure.
But it sounds like the vast majority are not requests for legal advice and should be subject to disclosure.
That being said, this is probably a side-effect of it being too easy to access documents through discovery. At many organizations, government in particular, people deal with the potential for disclosure by talking over the phone. Forcing Google to stop using this loophole likely results in more video chats and phone calls.
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Praecipuus dominus custodes custodit
Why exactly does this matter? (Score:2)
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That's like asking what if two suspects talked to a lawyer together - does that mean you can compel each to say what was said? (hint : it doesn't). Two people together in a discussion with a lawyer, whether spoken or by email, does not itself invalidate client-attorney privelege.
Which isn't to deny that Google may have been abusing that privelege here and that maybe something should be done about it. But you don't get to that just by saying more than one person was in the discussion with the lawyer.
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A very astute analogy.
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If there were multiple independent recipients then yea, the communication isn't privileged. Go get the other copy.
But if sender and all recipients are employees of the same company acting as an agent on company business? Then I think they collectively fall under the umbrella of attorney-client privilege. Because of course the company lawyer isn't representing John Q. Minion, she is representing Google (or Alphabet).
If you mixed some contractors, partners, and employees in the same email distribution. Then I
Re: Why exactly does this matter? (Score:1)
Because the messages are carbon copies, the communication itself with the attorney is privileged, even if you happen to keep or send a carbon copy to someone else.
By the same logic you could say, why not take the one from the backup server because that one didnâ(TM)t arrive at the lawyers office. Email is very similar to two people talking in a room, you just add an attorney to the room in their official capacity and your communications are privileged.
This has been done by corporations all over, why do
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This has been done by corporations all over, why do you think HR has an attorney present when they talk to you, the attorney has no capacity of stopping the HR drone from saying something stupid like âoewe fired you because youâ(TM)re too oldâ but the fact they said it cannot be proven in court since it is privileged.
Keep believing that. Using the same logic, something stupid that you say to the police under questioning with your lawyer present would be inadmissable. Hint: it's not. A la
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Not that I like Google, but there's only one copy of the email, and it includes both an attorney and a regular recipient. This is not at all different than having your lawyer in a meeting with someone and saying something directly to the other person. I think it's right for Google to refuse.
Now, if the main recipient is outside of Google, DOJ can go after THAT person and get the email from them. That person does not have attorney-client privilege with Google.
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but there's only one copy of the email
That would require the two recipients to share the whole communication path up to and including the mailbox. I somehow suspect this is not the usual case.
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From the link in the article;
"Sending an email to an in-house lawyer as the primary recipient increases the chances that a judge will find that the purpose was related to legal advice. Sending the email to the in-house lawyer as a “cc” or secondary recipient decreases the chances of privilege."
Re: Why exactly does this matter? (Score:1)
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Of course, that assumes that the email really is asking for legal advice, which is exactly what the DoJ's request to sanction Google is about.
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The order appears to be important. An email asking for legal advice with the attorney in the To and the manager in the cc is more likely to pass a sniff test than the other way around. It's the other way around that is the issue here, where the mere existence of a secondary recipient who happens to be an attorney is claimed to enjoy the same privilege.
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More important, as a general rule, attorney/client privilege doesn't apply anyway when a third part is part of the conversation.
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So you bring up a very good point. According to NOLO [nolo.com], "In general, when a third person is present, the attorney-client privilege continues to apply if that third person is there in order to aid the cause."
Then they give an example of two cases, one when the privilege was preserved, and then another when it wasn't. If I understand the information in the link correctly, Google may be in trouble.
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I think the underlying theory is that it is an internal conversation to Google. From Google employee A to Google employee B, CC Google legal counsel. In that sense it is Google talking to its lawyer. Or I suppose is the theory.
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Because you are not a lawyer. The law says any communication to a lawyer is priveledged, even if third parties are present. That includes emails that are CC to lawyers.
This was originally done based on criminal cases where the criminals would only speak with a lawyer for legal advice and never talk about crimes. The lawyers do not want to commit crimes so they avoid being a 3rd party present when it involves murder, rape, theft. But for non-criminal activity it is easier to confuse the issue.
But in non
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From the link in the article;
"Many judges caution that an employee who merely copies an in-house attorney on an email to a non-lawyer colleague does not automatically render the email privileged. Courts scrutinize the putatively privileged communication to determine whether its primary purpose was to secure or dispense legal advice."
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The law says any communication to a lawyer is priveledged, even if third parties are present.
No it doesn't.
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Skim the summary. It clearly says they add a boilerplate vague request for legal advice about the content of the email to the email.
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If I send an e-mail to two people, one of whom just happens to be a lawyer, what basis do I have to not turn over what was send to the other person who is not a lawyer?
None. If however you classify said email as privileged and or request legal review (whether real or fake) that is then covered under attorney client privilege.
There's no rule requiring communication to be 1-to-1 directly with a lawyer.
"Do not evil" (Score:2)
"... just do it by proxy instead"
I'll say it again: given how Google (or "Alphabet", or whatever name-du-jour) acts, if Eric Schmidt was 'adult supervision' while Google was 'growing up', it definitively makes him a shitty 'parent'.
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I'll say it again: given how Google (or "Alphabet", or whatever name-du-jour) acts, if Eric Schmidt was 'adult supervision' while Google was 'growing up', it definitively makes him a shitty 'parent'.
You are right. There's some bad stuff going on at Google (and also at the companies started by executives who left Google). Fortunately it seems to be mostly on the management side, and less on the engineering side.
New job, attorneys that code. (Score:2)
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In-house as in they are Google employees. The feds already have their W2s
The Sopranos (Score:2)
Right, an old Mafia trick (Score:2)
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There are. The court appoints them, and they are called "Special Masters".
Standard practice, really. (Score:2)
It's nothing new. At each and every corporation I worked for the communication policy always said the same thing - engage the legal function within the business in each and every case where it may pose a financial, legal, reputational or any other significant risk to the business. Whether the legal function decides to step in or not in a particular case - it's their prerogative. However, it's all about visibility and letting trained professionals make the call whether they need to engage in a particular cas
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And in some cases the legal department may deem it more prudent to go and have a conversation in person about the case and not have anything written down that could be subpoenaed at a later date...
Aaron Z
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With everyone using Slack, these days it is getting harder and harder.
Not BCC:? (Score:2)
After all BCC is for hiding.
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Came to say this. A Cc won't hide shit. Only a Bcc does that. We're nerds, we can handle being told the actual thing.
With that said I find this argument to be stupid. None of what they are doing would be hiding potential evidence. By default a copy of their request is still stored in the sent folder. Now, if they're deleting those, or if Google's internal system doesn't store a sent copy of a Cc, then there's evidence that they're hiding/destroying evidence. But a Cc is not that.
Huge exposure (Score:1)
That means a ton of stuff they thought was privileged suddenly isn't.
Serves them right for abusing attorney client privilege.
Hope the lawyers get dinged too for going along with it.
Now news: this is commonplace. (Score:1)
Do Evil. (Score:1)
That is what CC is used for (Score:2)
You CC something instead of just adding an additional respondent because you are not asking for a response.
I might CC my boss, HR, my lawyer, when I feel that they should be informed of my actions but do not necessarily need to take any action themselves. I am not asking for a response, but am just creating a paper trail and asking for oversight to reduce my liability.
That is why CC exists when it literally does the same thing as just adding more people to the address bar. It sends them a copy, but also inf
who made these loopholes? not google (Score:2)
Politicians did.
Why go after Google for this?
And? (Score:1)