Google Improperly Invoked Legal Privilege to Withhold Emails, Government Claims

WASHINGTON— Alphabet Inc.’s

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Google should be forced to pass on internal emails it withheld or redacted in the antitrust lawsuit brought against the company by the state and federal governments, the Justice Department said Monday.

In a filing with the US district court, the Justice Department said Google had falsely invoked the legal privilege to shield sensitive internal communications, a practice it says has been going on for years.

“For nearly a decade, Google has been training its employees to use the attorney-client privilege to hide ordinary business communications from discovery in lawsuits and government investigations,” the Justice Department said.

It further claimed that “Google teaches its employees an attorney, privilege label and generic ‘request’ to add counsel advice to any sensitive business communications that the employees or Google may want to protect from discovery.”

Google said its practices are overboard and on a par with other major companies.

“Like other US companies, we educate our employees about legal privilege and when to seek legal advice,” a Google spokesperson said in a statement. ”We have produced more than four million documents for the [Department of Justice] in this case alone – including many who saw workers as potentially privileged.”

Legal scholars said that eligibility for a lawyer’s privilege involves more than copying a corporate lawyer in an email or seeking general legal advice.

“The historical purpose of the privilege is to give attorneys the ability to engage in candid conversations with the client to discourage misconduct — prevent it before it happens — not protect misconduct from disclosure,” said Michele DeStefano, a university from Miami professor of law.

The Justice Department’s filing came in the government’s antitrust case against Google, in a federal court in Washington, DC. The Justice Department and prosecutors allege that Google maintained illegal monopolies in the search and search advertising markets.

The government is now asking the judge at a minimum to order Google to forward all requested emails and other communications in which a corporate lawyer was copied and failed to respond.

“The court should sanction Google and order the full production of withheld and redacted emails in which a corporate lawyer was involved in a communication between non-lawyers and failed to respond,” the government wrote.

“Alternatively, the court should not favor these emails from silent lawyers and immediately order their production.”

Monday’s lengthy government filing contained several examples of what the Justice Department considers examples of Google’s inappropriate tactics.

One employee wrote in a 2020 email: “ADCENTER CUSTOMER PRIVILEGE. (Added Tristan for legal advice as I’m about to use some trigger words.)’ The rest of the email has been redacted.

“Send me in a privileged email what you think we should do pls,” wrote a contributor in another email chain in 2020.

When one employee wrote “AUTHORIZED” in an email thread, another employee replied, “I think you need a lawyer in the thread to really have this privileged.”

The Justice Department said the practice reached the highest levels of the company, citing a 2018 email about an upcoming media story from then-Google CEO Sundar Pichai, who is now also the CEO of Alphabet, to Susan Wojcicki. , the CEO of YouTube:

“Lawyer client privileged, confidential, Kent pls advice,” wrote Mr. Pichai.

Google’s general counsel at the time was Kent Walker. According to the government’s request, Mr Walker “apparently never replied to the email thread”. “This email was initially withheld by Google and then denied” [the government] challenged.”

In another email quoted in the submission, “Can you put together a privileged deck for this group to preview, then send it to Sundar? Thanks.”

The government filing says that “general statements such as `[attorney,] please advise,’ ‘legally add’ or ‘add’ [attorney] for legal advice” appear in thousands of Google docs.”

write to John D. McKinnon at john.mckinnon@wsj.com

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