DoJ accuses Google of training staff to make 'false requests for legal advice'

'Communicate with Care' baked into orientation for newbies, according to fresh filing in ad search monopoly case

The US Department of Justice has accused Google of training staff to issue "false requests for legal advice" that it alleges effectively allowed it to hide documents from the discovery process while it fights off the search monopoly lawsuit launched against it in 2020.

The filing, a motion [PDF] asking the DC court to force Google to produce the documents by a May 2 deadline, alleges the search giant intentionally "misuse[d] the attorney-client privilege to hide business documents relevant to this case," leaving a trove of requested info "unjustifiably claimed by Google as attorney-client privileged."

The court document goes on to claim Google's new employee orientation had provided training on the practice, which according to a slide included in a supporting memo [PDF] is referred to as "Communicate with Care" and "began no later than 2015."

According to the memorandum:

For almost a decade, Google has trained its employees to use the attorney-client privilege to hide ordinary business communications from discovery in litigation and government investigations.

It went on to describe the alleged "Communicate-with-Care strategy" as:

  • marking the email as privileged,
  • copying in-house counsel, and
  • requesting unspecified 'legal advice'.

The document – dated March 8 but only filed on March 21 – claims that this includes top-level emails that were sent between execs about non-legal issues, and cites an email about an upcoming press story sent by then-Google CEO (now Alphabet CEO) Sundar Pichai to YouTube CEO Susan Wojcicki (a non-attorney) that was headed "Attorney Client Privileged" and "Kent pls advice" – and seemed to contain several CC'd email addresses redacted in the document.

Kent Walker, as the memo explains, was at the time Google's "Senior Vice President and General Counsel (now Google's Chief Legal Officer)" and had not replied to the email thread. The DoJ says that this particular email was "initially withheld by Google and only deprivileged after plaintiffs challenged."

The department makes several additional assertions about comms in other antitrust cases Google is facing from regulators across the world, including from the European Commission, and claims that Google's Communicate-with-Care program has "rendered the company's privilege log useless. It should be replaced."

The DoJ et al are asking for an index of all the docs Google has deprivileged in the case so far, for the court to sanction Google for "deliberate and deceptive misuse of privilege," and for the company to hand over unredacted versions of all emails where an attorney does not reply. They are also asking for the court to make a finding that Google can't maintain privilege claims over such emails.

The original 64-page antitrust complaint was first filed on October 20, 2020, by the US government – the fourth government-backed case against the search giant that year – alleging the firm had hobbled the efforts of rivals in an attempt to protect its monopoly. It accused the Alphabet offshoot of "unlawfully maintaining monopolies in the markets for general search services, search advertising, and general search text advertising in the United States," with the DoJ saying it sought to "stop Google's anticompetitive conduct and restore competition for American consumers, advertisers, and all companies now reliant on the internet economy."

Along with that civil antitrust suit, which was filed by 11 state Attorneys General in October 2020, Google also faces antitrust cases from Texas Attorney General Ken Paxton on behalf of a group of 10 State Attorneys General, filed in December 2020, and, separately, an antitrust case filed in Colorado (also in December 2020) on behalf of a group of 38 states.

There's also the complaint filed last year in July over Android and the Google Play Store, which is backed by 36 US states and commonwealths, along with Washington DC.

The Texas antitrust case was expanded in an amended complaint in Januray this year that increased the allegations by 69 more pages.

Like the infamous Microsoft antitrust suit (1998's US v Microsoft Corp), the 2020 Google suit alleges breaches of the Sherman Antitrust Act, legislation established in 1890 to outlaw monopolies and cartels.

According to the docket listings [PDF], Google has opposed the motion. The plaintiffs are asking for an oral hearing on the matter.

A Google spokesperson told The Register: "Our teams have conscientiously worked for years to respond to inquiries and litigation, and suggestions to the contrary are flatly wrong.

"Just like other American companies, we educate our employees about legal privilege and when to seek legal advice. And we have produced over four million documents to the DOJ in this case alone — including many that employees had considered potentially privileged." ®

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