A judge will decide whether a fishing expedition by Google to uncover, and then request, documents protected by client-attorney privilege is legitimate, in the latest twist of the Mississippi Saga.
Mississippi is one of several states wanting to find out whether Google has complied with a 2011 legal agreement with federal authorities and state attorney generals, concerning the sale of controlled substances without requiring a prescription or age verification.
The law firm being subpoenaed by the search engine giant, Jenner & Block, may be compelled to turn over the material requested, which could have a chilling effect on corporate crime fighting efforts.
As part of the agreement, Google has already acknowledged that it “did not act merely as an unwitting, neutral conduit” in the trafficking.
“If you and your attorneys exercise their First Amendment right to seek redress from a government official, Google will come after you. The court should not allow Google’s abuse of the litigation process,” said David Handzo, partner of the law firm, cited in the National Law Journal
The deal followed a joint FBI-FDA (Food and Drug Administration) bust and is one of a number of unusual arrangements Google managed to cut with federal authorities after the Obama administration took power, many of which are now being re-examined by the Senate.
In the case of an FTC anti-trust settlement, prosecutors believed they had a strong case for indictment, but were overruled by Obama-appointed commissioners.
The FBI-FDA settlement, to which the state attorneys-general are a party, raised eyebrows for a number of reasons. The NPA (non-prosecution agreement, PDF) didn’t mention Mexico, a source for many of the drugs – which is significant, as 40 per cent of Mexican-sourced drugs are fakes.
Google characterised the traffic movement as the “re-importation” of safe drugs. There is also the possibility that knowledge of the business went all the way to the top of Google.
"Larry Page knew what was going on,” Rhode Island’s federal prosecutor Peter Neronha told the Wall Street Journal in 2011, after the deal was announced.
Recently, Google has made aggressive legal moves to prevent anyone from finding out whether it is complying with the deal, or examining the evidence.
In October, after Google had ignored his requests for information, Mississippi’s elected corporate crime fighter Jim Hood issued a 79-page subpoena against Google. Google responded with a publicity campaign reviving the SOPA (Stop Online Piracy Act) protests, and litigation that froze Hood’s probe. The District Court called this a “juridical pre-emptive strike”.
Google claimed Hood was part of a movement, orchestrated by Hollywood's big players, to “break the internet”, by making Google more liable for links to rogue sites.
Hood wasn’t really interested in IP, which takes up only four pages of his subpoena. It’s highly unusual for a multinational to sue an elected state prosecutor, but so far, Google has succeeded in freezing the investigation.
This is where the law firm comes in.