Attorney-Client Privilege Misuse Claimed by US DOJ in Google Case

Since 2020, Google has been entangled in a multi-state (Texas included) antitrust lawsuit over its online advertising practices. At the heart of the lawsuit is Google’s alleged monopoly power over setting its advertising prices. Because Google controls a whopping 92% of search engine market share, it has had considerable control of pricing when it comes to online advertising. But the U.S. Department of Justice (“DOJ”)’s most recent issue related to the lawsuit with Google is over Google’s alleged misuse of attorney-client privilege.

Can an Internal Communication Process Create Attorney-Client Privilege Misuse?

While preparing its case against Google, the DOJ noticed that Google had a peculiar in-house procedure called “Communicate with Care.” The DOJ claims that, since 2015, Google has required its employees to mark any written documentation regarding its ad revenue-sharing and mobile application distribution agreements as privileged. Typically, communication between a client and their legal counsel is considered to be privileged but is usually produced in anticipation of litigation only. As such, the amount of communication and documentation marked under attorney-client privilege is small percentage of the documents produced by a company in its normal course of business.

When a document is marked as privileged, the information is shielded from production during litigation, and opposing counsel typically cannot review it. (This is a very simplistic explanation without nuances that will be present for every case.) Protecting this information from opposing counsel is meant to allow for meaningful conversation and truthful correspondence between attorneys and their client. This rule was generally aimed at allowing for companies to seek legal advice if they suspect something has gone awry and anticipated litigation could be possible. Despite this, there is never a guarantee of attorney-client privilege because a judge can potentially disallow the privilege and ordering the information be produced to the opposing side.

DOJ Claims Google’s “Communicate with Care” Policy Attorney-Client Privilege Misuse 

In the case at hand, the DOJ noticed that Google employees had marked many of its internal documents with the words “adding legal” or “adding [in-house counsel’s name] for legal advice” without specific requests for legal to respond to a real question. Moreover, there appeared to be no attempts at subsequent follow-up by the employee or attorney. The DOJ further noticed that this “Communicate with Care” process was practiced at all levels of Google and its company, Alphabet, even extending all the way up to Alphabet CEO Sundar Pichai.
Generally, to invoke attorney-client privilege, the following steps should be followed:

1.  Address the communication to the attorney (Google did this);

2.  End the communication by requesting legal advice from the attorney (Google did this);

3. Label the communication as privileged and confidential (Google did this);

4. Limit the communication to as few people as possible on a need-to-know basis (unclear whether Google did this); and

5. Do not further share the information with anyone else (unclear).

It is important to note here that Google aimed all of this privileged-labeled documentation at its own in-house legal department. Second, Google is said to have required its employees to do this when handling any communication regarding its revenue-sharing and mobile application distribution agreements as well as for handling responsive documents for other antitrust cases in which Google was involved. 

As these documents appeared to be categorized as privileged potentially without any specific consideration on a document-by-document basis, the DOJ contends that Google’s efforts purposely hinder meaningful investigation into its practices. As such, the DOJ has petitioned the court to sanction Google and require it to produce all the documents that it has redacted under the privilege and were not responded to by Google’s legal counsel. In response, Google has vigorously denied the DOJ’s allegations, stating that its practice was a considerate and legitimate practice of the company, borne out conscientious practice and (one would suppose) considerate “care.”

Key Takeaways on How Internal Communications Policies Can be Seen as Attorney-Client Privilege Misuse

In the federal antitrust case against Google, the DOJ has asked the court to sanction Google over its internal “Communicate with Care” practice because it allegedly abuses attorney-client privilege by:

• Allegedly attempting to impede litigation by shielding relevant documents from production;

• Asking employees to mark all communication regarding its revenue-sharing and mobile application distribution agreements as privileged; and

• Asking its employees responding to antitrust cases to similarly act.

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