DOJ Accuses Google of Intentionally Misusing Privilege to Hide Sensitive Documents

DOJ argued that employees abiding by this policy “were not acting out of an abundance of caution but instead were acting — as directed — to hide specific communications about subjects being investigated by regulators.” In fact, according to DOJ, “[t]he Communicate-with-Care program had no purpose except to mislead anyone who might seek the documents in an investigation, discovery, or ensuing dispute.”

According to DOJ, Google had initially withheld or redacted tens of thousands of documents on the basis of attorney-client privilege. Some of these were subsequently deprivileged but only after multiple challenges by DOJ to the specific privilege claims.

Further, while Google had offered to re-review its privilege log in light of DOJ’s position regarding the Communicate with Care program, this offer “misse[d] the point.” According to DOJ, the program “renders Google’s privilege log useless as a functional tool to evaluate privilege claims.” Therefore, DOJ requested that the court sanction Google by ordering it to release all previously withheld or redacted communications in which an in-house attorney was included but did not respond in the chain of communications with nonattorneys.

Google filed a response disputing DOJ’s claims and calling the Communicate with Care program “legitimate guidance” designed to inform employees about best practices in communicating with in-house counsel.

While the court has yet to rule on DOJ’s pending motion, this dispute highlights DOJ’s increasingly aggressive stance on corporate privilege claims. Specifically, companies should carefully consider assertions of privilege where in-house counsel is looped in to communications on sensitive matters without legal advice actively being sought. Once a company is involved in litigation and preparing a privilege log, care should be taken to provide sufficient facts to establish the privilege as to each document over which privilege is claimed. DOJ’s Antitrust Division now uses targeted scripts on produced logs to identify potentially deficient entries. Given the high costs of privilege disputes and the legal risks should privilege claims fail, companies should consider applying heightened attention to their privilege claims before submitting logs in the first instance and consider working with experienced legal counsel appropriately attuned to these issues from an e-discovery perspective.