In March, the United States Department of Justice brought a motion to sanction Google for misuse of the attorney-client privilege, and to compel it to produce documents withheld under such privilege. You can find the motion (PDF) and a 39-page memorandum (PDF) on CourtListener.com. The short version is that Google had for a long time--about a decade--instructed and trained its employees, under a "Communicate with Care" program, to involve counsel in communications related to the types of practices that the DOJ as well as numerous state attorneys-general are challenging in an antitrust case that is, by any objective measure, way bigger than Epic Games v. Apple is or FTC v. Qualcomm ever was.
Google is clearly on the opposite of the spectrum to Epic, which in my opinion did not communicate with the prerequisite degree of care about its 2020 Nineteen-Eighty-Fortnite stunt (provoking the ejection of Fortnite from the major mobile app stores in order to file prepared lawsuits and publish a campaign video). Somewhere in the middle between Google and Epic one would find Apple, some of whose internal emails about the App Store or its iMessage-related lock-in strategy were quite revelatory.
The DOJ had a point when bringing its motion. The attorney-client privilege is important. It even involves fundamental constitutional rights. But the "silent-attorney email" practice of just copying lawyers in order to later claim privilege is simply a means of obstructing (future) discovery.
From a legal-policy perspective, one could have an interesting debate over whether government plaintiffs should have better access to pre-litigation company-internal communications in antitrust cases, given that they--unlike an Apple or a Google--never have a competitive agenda other than protecting the competitive process itself. But that's another topic with wide-ranging ramifications.
Judge Amit P. Mehta of the United States District Court for the District of Columbia resolved the DOJ's motion in two steps. First, on April 12, he summarized the DOJ's attack vectors on Google's Communicate with Care policy as "seek[ing] one form of relief—an order compelling Google to produce in unredacted form all communications between non-attorneys where an in-house attorney was included but did not respond in the chain of communications—through two different mechanisms: a motion for sanctions and a motion to compel."
That April 12 order reiterated a concern Judge Mehta had already stated at an April 8 motion hearing: "whether [the D.C. District Court] has the inherent authority to impose sanctions for pre-litigation conduct of the type at issue here." The parties were given the opportunity to "identify any cases they believe support their respective positions on this issue by April 19, 2022"--but the judge made it clear that this should not be tantamount to "additional briefing." Just a case list.
Google's April 19 filing was short. The search engine monopolist declared itself unaware "of any reported decision where a court (1) used its inherent authority to sanction alleged pre-litigation conduct regarding marking business documents as subject to claims of attorney-client privilege or otherwise involving conduct relating to privilege issues, or (2) imposed the sanction of categorically removing attorney-client privilege and/or work-product protection over documents irrespective of whether they are privileged or work product in the absence of bad-faith litigation misconduct, typically involving violation of a court order."
It's impossible to prove a negative, so the intuitive thing for Google to do would have been to present decisions in which courts denied motions to compel, or motions for sanctions, in such a context. Additionally or alternatively, Google could have shown decisions in which courts granted such motions, but still enaged in some line-drawing consistent with Google's position by distinguishing those other cases from the kind of situation relevant here. I mean, it's not like Google's army of lawyers wouldn't have the resources to conduct a proper case-law research.
By contrast, the DOJ--which compared to Google is at an unbelievable resource disadvantage, listed nine decisions by federal appeals courts and six by district courts. The most recent appellate decision is the Fifth Circuit Snider v. L-3 case:
"(“[A] per se rule against sanctions for prelitigation conduct is inconsistent with the justifications for inherent-authority sanctions. A court’s inherent authority to impose sanctions serves goals beyond the specific litigation at hand. It exists also to protect the integrity of the judicial process writ large. A court should be free to sanction conduct that undermines that process, whether it occurred during litigation or before it."
The other decisions cited by the DOJ are also interesting, and let me just highlight one more because it's from the appeals court this blog has mentioned more frequently than any other--the Federal Circuit (Micron v. Rambus, 2011):
"[I]t was not clear error for the district court to conclude that the raison d’être for Rambus’s document retention policy was to further Rambus’s litigation strategy by frustrating the fact-finding efforts of parties adverse to Rambus." (the district court had held that Rambus engaged in spoliation)
Unfortunately, the DOJ's motion in the Google case has nevertheless been denied. Yesterday, the court entered the following decision:
MINUTE ORDER. 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)
A failure by Google to "ensure" a proper re-review of all of the roughly 21,000 "silent-attorney emails" at issue could still lead to sanctions. In his April 12 order, Judge Mehta had ordered Google to produce directly to the court "on a thumb drive" "(1) a random sample of 210 'silent attorney' emails (including the surrounding email chain), of which all or a portion has been withheld on privilege grounds (approximately 1% of the 'roughly 21,000' emails that 'fit [the] silent attorney description that [Google is] maintaining a privilege claim over,' [...]), and (2) a single spreadsheet with privilege log entries as they pertain to that sample of emails."
That was in-camera review by the court, and the re-review that Google has been asked to perform now will simply be done by Google itself. This means the DOJ isn't really going to be able to ascertain that all of the Google-internal emails that should have been disclosed will be produced.
If the court had decided against Google, there would have been different ways for Google to take the matter up with the D.C. Circuit (discretionary appeal, mandamus, or appealing a sanctions order). The DOJ, however, isn't going to suffer the kind of immediate harm that a party ordered to produce allegedly-privileged documents can claim to suffer. It can seek appellate review of that decision in the event of an adverse final judgment.
While the DOJ will be rightly disappointed, I remain optimistic that the government plaintiffs will likely establish some serious antitrust violations by Google even without piercing through Google's abuse of the shield that is the attorney-client privilege.
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