Mar 21, 2022 - Technology

Justice Department accuses Google of hiding business communications

Illustration of the Google "G" logo turning into a stop sign.

Illustration: Brendan Lynch/Axios

The Justice Department has asked the judge overseeing its antitrust case against Google to sanction the company for allegedly training employees to "camouflage" business documents from being revealed by legal disputes, per a brief filed Monday.

Driving the news: The DOJ writes in its brief that Google teaches employees to request advice from counsel around sensitive business communications, thereby shielding documents from discovery in legal situations.

  • Once counsel is involved, the company can treat the documents as protected under attorney-client privilege.

What they're saying: "Google has explicitly and repeatedly instructed its employees to shield important business communications from discovery by using false requests for legal advice," DOJ attorneys wrote in the brief, asking U.S. District Court Judge Amit Mehta to sanction Google and compel the disclosure of more documents.

  • After DOJ prodding, "Google’s outside counsel eventually deprivileged tens of thousands of documents initially withheld or redacted on the basis of privilege. These efforts, however, do not — and cannot — cure the misconduct inherent in Google’s efforts to hide relevant communications. Indeed, many more challenged documents remain outstanding."

The other side: “Our teams have conscientiously worked for years to respond to inquiries and litigation, and suggestions to the contrary are flatly wrong," Google spokesperson Julie Tarallo McAlister said. "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.”

Details: The government says Google has used this practice to withhold thousands of documents, many which outside attorneys found should not have been attorney-client privileged.

  • The government wants access to email chains where attorneys were copied, but never responded to.
  • The DOJ argues that employees were told to mark emails about revenue-sharing agreements and Android mobile app distribution agreements in this manner.

The intrigue: According to the Justice Department, this practice went all the way to the top of the company.

  • In one example, DOJ lawyers cite Google parent company Alphabet's CEO Sundar Pichai copying Google chief legal officer Kent Walker on an email to YouTube CEO Susan Wojcicki about how to respond to a press inquiry, with "Attorney Client Privileged" at the top.
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