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April 13, 2022 Practice Points

No, Adding an Attorney on an Email Does Not Automatically Make It Privileged

The DOJ argues that Google employees were deliberately shielding specific communications about subjects being investigated by regulators.

By Jessica Barnes

The Department of Justice (DOJ) recently argued for Google to have to turn over internal emails that it withheld or redacted as privileged. The DOJ made these arguments in a March 8, 2022, filing in United States v. Google, LLC, No. 1:20-cv-03010-APM in the Federal District Court for the District of Columbia, where it alleges that Google maintained unlawful monopolies.

The DOJ explained that for years, Google used a program where it trained and directed employees to add an attorney, a privilege label, and a generic request for counsel’s advice to shield sensitive business communications, regardless of whether any legal advice was actually needed or sought. 

Further, the DOJ expressed that Google employees frequently expressed their intent to hide documents from discovery by directing colleagues to create privileged communications or “make it privileged.”

For example, records showed that a Google product-management director asked “[c]an someone put a lawyer on this thread and make it ACP [attorney-client privilege] by asking for advice?” Another said, to a non-attorney, “[s]end me in a privileged email what you think we should do pls.”

The DOJ made clear that documents show that Google employees 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. A 2021 email showed that a top executive at Google reviewed draft notes in preparation for a business conference. The non-attorney executive made a request in a comment, “Can someone send me in a privileged separate email the current (where known, or guesses) and last known status on their “unhappiness.” The executive made an additional request asking “can I have a few more details in a separate privileged thread as this was a big issue the last time[.]”

In requesting that the court order that all silent-attorney emails must be produced, the DOJ’s motion for sanctions provided a reminder on some important privilege rules, including: (1) A party may not shield otherwise discoverable documents from disclosure by including an attorney on a distribution list; (2) an attorney recipient alone cannot create a privilege; and (3) documents prepared by non-attorneys and addressed to non-attorneys with copies routed to counsel are generally not privileged because they are not communications made primarily for legal advice.

At the end of the day, it is a good practice to be cautious of preserving the attorney-client privilege. But privilege requires the seeking or providing of legal advice and not just an attorney’s presence in an email. Deliberately shielding unprivileged communications is just a welcome for future sanctions.

Jessica Barnes is an associate at Babst, Calland, Clements & Zomnir P.C. in Pittsburgh, Pennsylvania.

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