Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 1 of 39
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
Case No. 1:20-cv-03010-APM
HON. AMIT P. MEHTA
MEMORANDUM IN SUPPORT OF
PLAINTIFFS’ MOTION TO SANCTION GOOGLE AND COMPEL DISCLOSURE OF
DOCUMENTS UNJUSTIFIABLY CLAIMED
BY GOOGLE AS ATTORNEY-CLIENT PRIVILEGED
Plaintiffs respectfully request the Court to sanction Google LLC (Google) for its
extensive and intentional efforts to misuse the attorney-client privilege to hide business
documents relevant to this case. Google has explicitly and repeatedly instructed its employees to
shield important business communications from discovery by using false requests for legal
advice. These efforts directly harmed Plaintiffs, undermined their discovery efforts, and
subverted the judicial process. The Court should sanction Google and order the full production of
withheld and redacted emails where in-house counsel was included in a communication between
non-attorneys and did not respond. Alternatively, the Court should hold these silent-attorney
emails are not privileged and immediately order their production.
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 2 of 39
INTRODUCTION
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. Specifically, Google teaches its employees to add an attorney, a privilege label,
and a generic “request” for counsel’s advice to any sensitive business communications the
employees or Google might wish to shield from discovery. Google has referred to this practice as
“Communicate with Care.” Documents produced by Google make the existence of this corporate
strategy undeniable and demonstrate the prevalence of this practice throughout the company.
As part of Google’s larger efforts to shield documents from production, Google
employees were expressly directed to add artificial indicia of privilege on all written
communications relating to the exclusionary search-distribution agreements at the heart of
Google’s monopolies. Google’s employees followed the Communicate-with-Care training,
routinely adding in-house counsel to business communications, affixing privilege labels, and
including pretextual requests for legal advice when no advice was actually needed, sought, or
thereafter received. In these email chains, the attorney frequently remains silent, underscoring
that these communications are not genuine requests for legal advice but rather an effort to hide
potential evidence.
Google’s strategy worked. Google’s outside counsel often accepted Google employees’
artificial claims of privilege at face value. After Plaintiffs’ extensive efforts to uncover and
challenge erroneous privilege claims, 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.
Accordingly, the Court should invoke its inherent authority to sanction Google and order
2
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the production of all emails between non-attorneys where the included in-house counsel did not
reply.
Alternatively, the Court should (1) hold that Google has not, and cannot, make the
necessary showing to support its privilege claims over any email created pursuant to the
Communicate-with-Care program, and (2) order Google to produce withheld emails where the
included in-house counsel did not bother to reply. These silent-attorney emails lack all indicia of
privilege and should be produced. Although Google’s policy of pretextually including attorneys
on business communications has affected a far larger set of documents that Google has withheld
or redacted—and Plaintiffs reserve their rights on this broader set of documents—immediate
production of Google’s silent-attorney emails is the minimum relief appropriate given Google’s
abuse of the discovery process.
STATEMENT OF FACTS
I. At Google’s Instruction, Google Employees Deliberately Create Artificial
Indicia Of Privilege To Shield “Sensitive” Business Communications
For years, Google has systematically trained its employees to camouflage ordinary-
course business documents to look like privileged discussions. Google’s efforts to avoid
discovery have included express training and direction on how to imbue “sensitive” documents
(including those documents highly relevant to this case) with the appearance of attorney-client
privilege.
A. Google Directs Employees To Privilege “Any Written Communication”
About Agreements Central To Google’s Anticompetitive Scheme
Google’s documents reveal that Google directs employees to add in-house counsel, make
a pretextual request for legal advice, and apply attorney-client privilege labels to shield
“sensitive” business discussions from discovery, even when the author has no actual interest in
seeking or receiving legal advice.
3
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 4 of 39
This practice is referred to as “Communicate with Care” and began no later than 2015,
when Google’s new employee orientation included the slide in Figure 1.
1
Figure 1
The speaker notes accompanying this presentation direct new employees: “If you’re
dealing with a sensitive issue, it’s important to communicate with care over email. You can
follow these steps to ensure your email communication is privileged in these circumstances.”
2
There is no discussion about when or whether legal advice is actually needed or should be
sought.
Training of this sort was not limited to new employees. It was also provided to teams
negotiating the search-distribution at the center of this case. In 2016, after the European
Commission opened a formal investigation into Google’s search-distribution practices on
1
Declaration of Meagan K. Bellshaw (Bellshaw Decl.) Ex. 1 (GOOG-DOJ-06890329, at -363)
(per Google’s metadata, date of document is 10/8/2015); Bellshaw Decl. Ex. 2 (Raghavan Dep.
280:1-8, Dec. 14, 2021). Throughout this memorandum, Plaintiffs will refer to this practice as
Communicate with Care as that appears to be how it was frequently referred to by Google. It
may have had different names at different times and to different employees.
2
Bellshaw Decl. Ex. 1
4
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 5 of 39
Android,
3
Google held a two-day “Android Mobile Search & Assistant Revenue Share
Agreement Training.” Google presented the slides in Figures 2 and 3 to attendees of this
training.
4
Figure 2
Figure 3
3
Press Release, European Commission, “Antitrust: Commission opens formal investigation
against Google in relation to Android mobile operating system” (Apr. 15, 2015), available at
https://ec.europa.eu/commission/presscorner/detail/en/MEMO 15 4782.
4
Bellshaw Decl. Ex. 3 (GOOG-DOJ-10619658, at -66566) (per Google’s metadata, date of
document is Dec. 7, 2016).
5
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As the slides show, attendees were asked “what else should you always keep in mind?”
The answer: camouflage “any written communication regarding Rev Share and MADA” to
look like a request for legal advice by adding “Legal” and marking content “Confidential
Attorney Client Privileged.”
5
Google then instructed its employees to “request guidance” from
an attorney.
6
Again, employees were directed to portray business communication as privileged
regardless of whether any legal advice was genuinely sought.
Specific reference to the Mobile Application Distribution Agreements (MADAs) and
revenue-sharing agreements (RSAs) was no accident. These agreements—between Google and
its search distribution partners—are central to Google’s efforts to monopolize the search and
search advertising markets at issue in this case. As Plaintiffs’ Amended Complaint explains, the
RSAs and MADAs (along with other supporting agreements) lock up search distribution on
mobile devices and foreclose competition.
7
The Communicate-with-Care training surfaced again when the United States began
reviewing Google’s conduct.
8
Six days after the United States Department of Justice issued its
first Civil Investigative Demand in the investigation into Google’s search monopoly,
9
Google
again warned its employees to take steps to immunize from disclosure in discovery “any written
5
Id. at -666 (emphasis in original).
6
Id. Helen Tsao ( ) is in-house counsel for Google. Bellshaw Decl. Ex. 4.
7
Am. Compl. ¶¶ 5287, 166 (ECF No. 94).
8
The Antitrust Division announced the opening of its review of market-leading online platforms
on July 23, 2019. See Press Release, U.S. Dep’t of Justice, “Justice Department Reviewing the
Practices of Market-Leading Online Platforms” (July. 23, 201), available at
https://www.justice.gov/opa/pr/justice-department-reviewing-practices-market-leading-online-
platforms.
9
The Antitrust Division issued its initial Civil Investigative Demand to Google’s parent
company, Alphabet, Inc., on August 30, 2019 (CID No. 30092). Bellshaw Decl. at ¶ 5.
6
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 7 of 39
communication” relating to RSAs and MADAs.
10
Figure 4
As before, Google directed employees to create the appearance of privilege on all written
communications about its search distribution agreements by including counsel on the email,
marking content as “Confidential Attorney Client Privileged,” and requesting “guidance.”
Again, no effort was made to distinguish between authentic requests for advice and efforts to
shield business communications from production.
B. Google Employees Followed The Instructions To Create Artificial Indicia Of
Privilege On Business Communications
Communications produced in response to Plaintiffs’ privilege challenges show that
Google’s employees complied with Google’s instructions to camouflage business
communications. Indeed, Google employees at every level followed the company’s three-step
formula of (1) including in-house counsel on sensitive business discussions, (2) adding privilege
10
Bellshaw Decl. Ex. 5 (GOOG-DOJ-21790045, at -046) (per Google’s metadata, date of
document is Sept. 5, 2019). Kate Lee ( ) is another in-house counsel for Google.
Bellshaw Decl. Ex. 4.
7
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 8 of 39
headings, and (3) making pretextual requests for legal guidance.
For example, on July 16, 2019, a Google product manager updated two supervisors on
negotiations for Google’s RSA with LG, a mobile-device manufacturer. In the email, the product
manager offered his recommendation and sought input from the supervisors, both non-attorneys,
on the business discussion with LG. Nevertheless, the product manager prefaced the email by
writing “PRIVILEGED & CONFIDENTIAL . . . Kate – please advise as needed.”
11
Kate Lee,
the in-house counsel, was included (as Google taught) on the “To” line but never responded.
12
Google, nevertheless, originally withheld the entire email thread, including the subsequent
emails that dropped the attorney from the discussion and were sent solely between two non-
attorneys.
13
Similarly, on June 14, 2017, a vice president responded to an email discussion about a
slide deck that was being prepared for Google’s CEO Sundar Pichai.
14
The discussion concerned
whether to
. As shown in Figure 5, the
11
Bellshaw Decl. Ex. 6 (GOOG-DOJ-28350269, at -271) (emphasis in original); see also
Bellshaw Decl. Ex. 7 (GOOG-DOJ-27771584) (showing Kate Lee listed on the “To” line).
12
Bellshaw Decl. Ex. 7 (GOOG-DOJ-27771584); Bellshaw Decl. Ex. 8 (GGPL-2060441155)
(Google privilege log entry showing that document was originally fully withheld); Bellshaw
Decl. Ex. 9 (GOOG-DOJ-28350262) and Bellshaw Ex. 8 (GGPL-1081901687); Bellshaw Decl.
Ex. 10 (GOOG-DOJ-28350265) and Bellshaw Decl. Ex. 8 (GGPL-1081901608); Bellshaw Decl.
Ex. 6 (GOOG-DOJ-28350269) and Bellshaw Decl. Ex. 8 (GGPL-1081901607).
13
Id.
14
Bellshaw Decl. Ex. 11 (GOOG-DOJ-26758239, at -243).
8
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vice president followed the Communicate-with-Care guidance:
15
Figure 5
This email, which Google deprivileged only after repeated efforts by Plaintiffs, reflects
all of the hallmarks of Google’s Communicate-with-Care strategy: marking the email as
privileged, copying in-house counsel, and requesting unspecified “legal advice.” Over the next
fifteen hours, the Google employees on this email exchanged eight responses about negotiating
strategy, yet the in-house counsel apparently never responded and no actual legal advice was
sought or disclosed.
16
Nevertheless, Google’s employees included some form of “Privileged”
marking on every subsequent email, including the top-level emails that removed the in-house
counsel from the thread and were sent exclusively between two non-attorneys.
17
This practice of portraying ordinary business communications as privileged is followed at
Google’s highest levels. Google’s CEO (and now also Alphabet’s CEO), Sundar Pichai sent the
15
Id.
16
Id.
17
Id. Google’s outside counsel initially fully withheld the entire thread, including the top emails
between two non-attorneys. See Bellshaw Decl. Ex. 8 (GGPL-1081174382).
9
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 10 of 39
following email about an upcoming press story to Susan Wojcicki (a non-attorney):
18
Figure 6
Although the email was directed to a non-attorney (Susan Wojcicki) about a non-legal
press issue, Mr. Pichai wrote at the top “Attorney Client Privileged” and “Kent pls advice.” Kent
Walker, a Google Senior Vice President and General Counsel (now Google’s Chief Legal
Officer), apparently never replied to the email thread. This email was initially withheld by
Google and only deprivileged after Plaintiffs challenged.
19
Google’s production contains numerous examples of Google employees carrying out the
Communicate-with-Care directions, where the emails revolve around RSAs, MADAs, and other
“sensitive” issues at the heart of Plaintiffs’ case. Indeed, generic statements such as “[attorney,]
18
Bellshaw Decl. Ex. 12 (GOOG-DOJ-28509324, at -324).
19
Id.
10
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please advise,”
20
“adding legal,”
21
or “adding [attorney] for legal advice”
22
appear in thousands
of Google documents.
23
These emails lack any specific request for legal advice and the attorneys
rarely respond. Tellingly, when Google attorneys fail to respond to these generic requests, the
non-attorneys do not follow-up with more specific requests for advice or even remind the
attorney to respond.
C. Google Employees, Including Its Leaders, Encourage Coworkers To
Communicate With Care By Asking Them To “Make It Privileged”
In following the Communicate-with-Care guidance, Google employees, including
Google’s leaders, frequently express their intent to hide documents from discovery by directing
20
See, e.g., Bellshaw Decl. Ex. 13 (GOOG-DOJ-18636836, at -836) (email from non-attorney,
redacted because top of email includes header “Privileged and Confidential, Seeks advice of
counsel – Kate pls advise,” followed by a business communication directed explicitly to another
non-attorney about the Samsung RSA negotiation); Bellshaw Decl. Ex. 7 (GOOG-DOJ-
27771584, at -854) (non-attorney starts an email sent to other non-attorneys, regarding a
“follow-up conversation with LG” on revenue-share business negotiations, with “Privileged &
Confidential Kate – please advise as needed,” and Google initially withheld the document on that
basis).
21
See, e.g., Bellshaw Decl. Ex. 14 (GOOG-DOJ-24020181, at -182) (Google vice president
starts email to other non-attorneys about business deals with “**attorney client privileged**
adding Legal for counsel,” with no attorney responding to any email in the remainder of the
thread).
22
Bellshaw Decl. Ex. 15 (GOOG-DOJ-09059783, at -785) (deprivileged communication in
which a Google vice president responds to a thread about Android business issues with
“Attorney Client Privileged (Adding Tristan for Legal advice),” resulting in response emails
using a “Privileged” header even though the added attorney does not respond in any of the
subsequent 11 emails); Bellshaw Decl. Ex. 16 (GOOG-DOJ-28416766, at -768) (largely
deprivileged communication, beginning with “Privileged and Confidential – Adding Tristan for
legal advice Please Don’t Share,” in which a non-attorney emails other non-attorneys about
, but the included attorney does not respond to any of the
subsequent 11 emails that each relate to business considerations).
23
To illustrate, a search of Google’s produced documents (including deprivileged files) for the
generic phrases “please advise,” “pls advise,” “for advice,” “for legal advice,” “for any legal
advice,” “for guidance,” or “seeks advice of counsel” within five words of the first names of five
attorneys from the examples cited in this brief returned 9,329 documents. Bellshaw Decl. ¶ 7.
This is only from the documents that Plaintiffs can currently review. Many more such documents
containing generic and pretextual requests for legal advice are likely still withheld or redacted.
11
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 12 of 39
colleagues to create privileged communications or “m
ake it privileged.”
24
For example, in a 2019
email thread, a Google product-management director asked, “[c]an someone put a lawyer on this
thread and make it ACP by asking for advice?”
25
In another 2019 email thread, as shown in
Figure 7, Google engineers and analysts discussed the business tradeoff of “
.” After reviewing the revenue data, a non-attorney employee added an attorney to the
email “to make this privileged”:
26
Figure 7
The added attorney apparently never responded, confirming there was no legal question to be
answered.
27
Similarly, in Figure 8, a Google vice president explained that he was including an
attorney in an email about business negotiations because his message would contain
“trigger words,” presumably terms that Google employees are taught to avoid (like “leverage”)
24
Bellshaw Decl. Ex. 17 (GOOG-DOJ-21646392, at -392) (in an email thread, responding to a
colleague’s request to “threadkill please,” a Google employee wrote “instead of threadkill, please
copy lawyer and make it privileged thread to get internal consultation.”); see also, e.g., Bellshaw
Decl. Ex. 18 (GOOG-DOJ-18895045, at -045) (adding an attorney to an email with meeting
notes “to make this thread Attorney-Client Privileged”); Bellshaw Decl. Ex. 19 (GOOG-DOJ-
09750925, at -925) (“Let’s make the [slide] deck attorney client privileged and share with a
lawyer asap”).
25
Bellshaw Decl. Ex. 20 (GOOG-DOJ-23945666, at -668). Google initially produced redacted
versions of the five subsequent emails but then produced an unredacted version of the thread
after Plaintiffs’ challenge. Id.
26
Bellshaw Decl. Ex. 21 (GOOG-DOJ-12864417, at -418).
27
Id.
12
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and that regulators might look for:
28
Figure 8
The included attorney did not respond in any of the subsequent roughly 25 emails in the
string and was eventually dropped from the email thread entirely, confirming that his inclusion
was not for the legitimate purpose of seeking legal advice.
29
Often, Google employees will correct and discipline colleagues’ misfires in attempts to
claim privilege. For example, on a 2016 email thread in which Google employees discussed a
business negotiation , one employee reminded another that an attorney was needed
for the Communicate-with-Care formula to work (see Figure 9). He warned “I think you need a
lawyer on the thread for this to be actually privileged.” After being reminded, his colleague
replied and, as directed, added in-house counsel, Tim Taylor. Google withheld this document on
28
Bellshaw Decl. Ex. 22 (GOOG-DOJ-21815059, at -065).
29
Id.
13
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a privilege claim until challenged by Plaintiffs.
30
Figure 9
Google’s use of attorneys to shield business communications pervades the entire
company, including its leadership, and continued unabated after the company was on notice of
the Department of Justice’s investigation and even after the filing of the complaint in this action.
For example, after the Department of Justice issued Civil Investigative Demands to
Google, Prabhakar Raghavan, a senior Google executive, sent a list of business ideas to his
non-attorney subordinates. Figure 10 shows that on April 3, 2020, Mr. Raghavan requested a
30
Bellshaw Decl. Ex. 23 (GOOG-DOJ-06399233, at -233). Responding several months later to
Plaintiffs’ privilege challenge, Google reproduced the document, without redactions. Id.
14
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colleague create a “privileged deck” addressing the business issues in the email.
31
Figure 10
The requested “privileged deck” involved search advertising—one of the markets Google
is alleged to have monopolized—and was intended for “Sundar,” Google’s CEO. Of note, the
recipient did not respond with a query as to what a “privileged deck” was. The nomenclature was
understood.
Likewise, one of Google’s most senior executives—Philipp Schindler, Google’s Chief
Business Officer—repeatedly asks for non-legal communications to be relayed to him in a
“privileged” form. On November 3, 2020, after the complaint was filed in this case and Google
had an ongoing duty to produce materials in response to discovery requests, Mr. Schindler
31
Bellshaw Decl. Ex. 24 (GOOG-DOJ-20830033).
15
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received an email from a non-lawyer describing how
. As shown in Figure 11, Mr. Schindler responded, asking for a “privileged email” with
the employee’s perspective:
32
Figure 11
II. Plaintiffs Have Been, And Continue To Be, Harmed By Google’s
Conduct
Google’s strategy of creating the appearance of privilege on sensitive business documents
has had its intended effect: tens of thousands of documents were improperly withheld or redacted
in this litigation and many more challenged documents remain withheld or redacted. The burden
Plaintiffs have faced in seeking the improperly withheld documents and unwinding Google’s
misconduct has interfered with the Plaintiffs’ preparation of their case.
Plaintiffs began challenging Google’s overstatement of privilege claims in June 2021. At
the time, careful scrutiny of Google’s privilege logs showed that tens of thousands of privileged
documents merely included in-house counsel on the carbon-copy line, even though it is well
settled that copying an attorney does not confer privilege. Over the subsequent months, Plaintiffs
repeatedly challenged Google’s privilege claims, even as Plaintiffs worked to understand
32
Bellshaw Decl. Ex. 25 (GOOG-DOJ-21476426); see also Bellshaw Decl. Ex. 26 (GOOG-
DOJ-30899052, at -053) (Philipp Schindler asks a non-attorney colleague to send him an update
on a business partner “in a privileged separate email”); Id. (GOOG-DOJ-30899052, at -055 (Mr.
Schindler asks a non-attorney colleague to send more details about a business partner in advance
of a meeting “in a separate privileged thread”).
16
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Google’s ongoing efforts to falsely claim privilege on common business documents. During this
time, Google has been slow to respond to Plaintiffs’ requests, taking months to reproduce
challenged documents. When Google did concede the veracity of Plaintiffs’ privilege challenges,
the previously withheld documents often arrived after depositions of the relevant Google
custodians.
33
Finally, Google refused to re-review categories of documents directly implicated by
Google’s abuse of the attorney-client privilege.
34
Although Google has, ultimately, deprivileged numerous documents, many other
questionable documents remain fully withheld or redacted.
35
The full universe of unresolved
documents is obscured by the fact that Google has refused, despite repeated requests, to provide
an accounting of which documents it has re-reviewed and which documents it has deprivileged.
36
33
See, e.g., Bellshaw Decl. Ex. 27 (GOOG-DOJ-21672259) (Yuki Richardson email challenged
on November 15, 2021, as improperly redacted, but Google did not produce a deprivileged
unredacted version until January 11, 2022, after the December 15 deposition of Ms. Richardson);
Bellshaw Decl. Ex. 28 (GOOG-DOJ-21129755) (email about RSAs with carriers originally
redacted because it included “ATTORNEY CLIENT PRIVILEGED (Kate, please advise)” was
challenged by Plaintiffs on November 15, 2021, but Google did not produce a deprivileged,
unredacted version of the document until January 13, 2022, after the deposition of all three
Google deponents on the thread—Jamie Rosenberg (Dec. 1314, 2021), Adrienne McCallister
(Dec. 13, 2021), and Yuki Richardson (Dec. 15, 2021)).
34
It was not until March 1, 2022, that Google agreed to review a subset of these
communications, and this was only after Plaintiffs informed Google of its intent to file a motion
to compel.
35
See, e.g., Bellshaw Decl. Ex. 29 (GOOG-DOJ-24380202, at -204) (redacted email in which
employee adds attorney Matthew Bye to the “CC” line of an email relating to “Carrier Search
Rev Share” along with several non-attorneys, but Mr. Bye never replies over the course of the
subsequent eight emails between non-attorneys, each of which Google redacted and has not
deprivileged despite Plaintiffs’ challenge on November 15, 2021). For reference, Google has
fully withheld over 80,000 documents where an attorney is merely carbon-copied on an email
between non-attorneys. Because these are fully withheld, Plaintiffs lack any visibility as to
whether an attorney responded with legal advice during the thread.
36
Google has produced tens of thousands of previously fully withheld and redacted documents
as part of its privilege re-review, Bellshaw Decl. ¶ 8, but Google has not provided Plaintiffs with
the necessary information to match newly produced documents to privilege log entries for the
fully withheld version. Plaintiffs repeatedly asked Google for this information in August,
17
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Google, moreover, has offered no formula by which it can—upon re-review—separate out the
Communicate-with-Care emails from those (if any) carrying a genuine request for attorney
advice. As such, re-review efforts have not remedied Google’s misconduct or the burden and
delay it created.
ARGUMENT
Google’s actions under the Communicate-with-Care program are misconduct that
demand sanction to protect the integrity of the investigative and judicial processes. Even if the
Court holds that Google’s conduct is not sanctionable, the Court should conclude that (1) all
emails created under Communication with Care are not privileged, and (2) Google cannot make
the necessary showing to maintain its privilege claims over the silent-attorney emails. Under
either framework, the Court should order Google to produce all the silent-attorney emails
without redaction.
I. The Court Should Sanction Google For Its Abuse Of The Attorney-Client
Privilege By Compelling Disclosure Of All Silent-Attorney Emails
The Court should exercise its inherent authority to sanction Google’s misconduct by
ordering the production of the silent-attorney emails presently withheld or redacted under claims
of privilege. Specifically, the Court should hold that (1) Google’s conduct is sanctionable, and
(2) an appropriate sanction is the immediate production of all withheld or redacted emails where
no attorney responded to the purported request for legal advice.
A. Google’s Conduct Is Sanctionable Under The Court’s Inherent Authority
The Court should conclude that Google’s years-long effort to hide business
November, and January. See Bellshaw Decl. ¶ 6, Ex. 36 (Plaintiffs’ November 15, 2021 Letter)
and Ex. 37 (Plaintiffs’ January 25, 2022 Letter). Nor has Google updated its privilege logs to
accurately reflect which privilege claims have been withdrawn. As a result, Plaintiffs have no
way to check Google’s work and discern which privilege challenges remain outstanding.
18
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communications under the cloak of attorney-client privilege is sanctionable misconduct.
1. Google’s Communicate-With-Care Program Is Sanctionable
In Google’s Communicate-with-Care program, new employees were taught to hide
“sensitive” business communications with false requests for assistance from counsel. As part of
their ordinary orientation, these employees were directed to protect sensitive communications by
adding an attorney to the email, directing a pretextual question to the attorney, and marking the
communication privileged. These directions made no allowance for whether legal advice was
necessary or desired. The Communicate-with-Care program had no purpose except to mislead
anyone who might seek the documents in an investigation, discovery, or ensuing dispute.
Indeed, when regulators—including the European Commission and the United States
Department of Justice—began investigating Google’s search-distribution agreements, Google
took steps to ensure its Communicate-with-Care training addressed communications relating to
those agreements. The company explicitly directed its employees to route “any written
communication” relating to RSAs and MADAs—the agreements central to this action—through
counsel with requests for advice included. Google believed that these efforts would facially
support a privilege claim and shield the communications from being produced in future
litigation. Google knew these agreements created significant antitrust risk for the company and
presented significant concerns to antitrust regulators worldwide. The slide in Figure 12 appeared
four times in a single presentation used during the Android Mobile Search & Assistant Revenue
19
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 20 of 39
Share Agreement Training.
37
Figure 12
These directions to misuse the attorney-client privilege were misconduct, as were the
efforts by Google’s employees to follow them—either by falsely seeking legal advice or
instructing subordinates to take a business communication and “make it privileged.”
To be clear, those following Google’s Communicate-with-Care program 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. For example, in July 2021,
Mr. Schindler—a top executive at Google—reviewed draft notes in preparation for a business
conference on Google’s “ .”
38
37
Bellshaw Decl. Ex. 30 (GOOG-DOJ-29824601, at -605, -617, -681, -702).
38
Bellshaw Decl. Ex. 31 (GOOG-DOJ-30900278).
20
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, Mr. Schindler made a request in a comment:
39
Figure 13
Thus, Mr. Schindler—a non-attorney—expressly asked for a business update but one
shielded by privilege. More importantly, Mr. Schindler tips his hand that he wants things routed
through counsel to hide the communications; there is no request for legal guidance. These same
preparation notes included a separate point about a telecommunications company. Mr. Schindler
requested “more details” on this point in a “privileged thread”:
40
Figure 14
These were express efforts by Google’s Chief Business Officer to wrap business
communications in the cloak of attorney-client privilege.
Google’s Communicate-with-Care program was successful: in this case, Google
designated tens of thousands of business communications as privileged and withheld these
documents from Google’s initial production. These over-designations created enormous,
unnecessary costs for Plaintiffs, both (1) in delay in receiving the improperly withheld
documents, and (2) in resources spent investigating and challenging the improper withholding.
Plaintiffs’ efforts to unwind Google’s privilege claims began on June 4, 2021, when
39
Id. at -279.
40
Id. at -280281.
21
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 22 of 39
Plaintiffs sent Google a letter raising a series of privilege concerns based on the first volumes of
Google’s litigation privilege logs.
41
In this letter, Plaintiffs expressed concern over Google’s
withholding of 81,122 documents as privileged where an attorney was merely carbon-copied.
42
Although Plaintiffs had not yet uncovered evidence regarding the Communicate-with-Care
training, Plaintiffs pointed to evidence that Google employees appeared to be adding attorneys to
communications, not for legal advice, but to shield information from discovery. The June 4 letter
cited examples such as emails asking “could we please include a lawyer in the thread and make
the doc A&C Privileged please”
43
and “+ to make this thread Attorney-Client
Privileged.”
44
As Google’s production continued, however, the company advanced the same unfounded
privilege claims for documents identified on subsequent privilege logs. This required Plaintiffs to
send new challenges in July, November, and January.
Subsequently, deprivileged documents revealed that the scope of this abuse was more
pervasive and intentional than Plaintiffs realized. At the time of this filing, Google has reversed
its claims of privilege on tens of thousands of documents. This is no tribute to Google’s efforts to
cure their prior conduct, but a measure of the harm the company’s misconduct has wrought, and
the effort expended by Plaintiffs in challenging Google’s misconduct. This harm continues as
many more challenged silent-attorney emails remain withheld and redacted.
41
Bellshaw Decl. Ex. 35 (Plaintiffs’ June 4, 2021 Letter).
42
Id. at 9.
43
Bellshaw Decl. Ex. 32 (GOOG-DOJ-07801741, at -741).
44
Bellshaw Decl. Ex. 18 (GOOG-DOJ-18895045, at -045).
22
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 23 of 39
2. Google’s Efforts To Hide Relevant Evidence Under The Pretense Of
Attorney-Client Communications Raise The Same Concerns As
Spoliation And Misrepresentation
Sanctions are warranted where “a party has engaged deliberately in deceptive practices
that undermine the integrity of judicial proceedings.” Anheuser-Busch, Inc. v. Natural Beverage
Distribs., 69 F.3d 337, 348 (9th Cir. 1995); see also Leon v. IDX Sys. Corp., 464 F.3d 951, 958
(9th Cir. 2006). Google’s conduct checks all of those boxes. Google engaged deliberately in
deceptive conduct—directing its employees to include pretextual requests for legal advice—for
the purpose of shielding documents from discovery in this litigation. Google’s policy did not
require destroying documents or deleting emails. But orchestrating the use of fraudulent requests
for legal advice to camouflage non-privileged business email has much the same result—
documents that would otherwise be discoverable are denied to plaintiffs—and, if not remedied,
inflicts the same harm on the factfinding process. The discovery process, of course, is essential to
the search for truth in judicial proceedings and ultimately to the Court’s ability to reach
conclusions based on an accurate and complete representation of the facts.
Google’s institutionalized manufacturing of false privilege claims is egregious, spanning
nearly a decade and permeating the company from the top executives on down. The breadth and
calculation of Google’s Communicate-with-Care program renders it commensurate with other
sanctionable conduct, including elements of both spoliation and misrepresentation. Google’s
conduct is cut from the same cloth as actions in the caselaw that have been sanctioned—even if
the fabric is cut in a more intricate pattern.
The Court’s inherent authority enables the Court “to protect [its] institutional integrity
and to guard against abuses of the judicial process with contempt citations, fines, awards of
attorneys’ fees, and such other orders and sanctions as they find necessary, including even
dismissals and default judgments.” Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1472 (D.C. Cir.
23
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 24 of 39
1995).
When “a party has engaged deliberately in deceptive practices that undermine the
integrity of judicial proceedings,” courts have the inherent authority to impose severe sanctions.
See Anheuser-Busch, 69 F.3d at 348. Here, there can be no doubt Google’s deception was
deliberate and has undermined this proceeding. The requests for legal advice under
Communicate with Care were misrepresentations made when it was foreseeable that the emails
would be relevant to litigation brought by regulators, including the Department of Justice.
Google’s instruction that employees make these misrepresentations increased the likelihood that
a business communication would be withheld as privileged in subsequent government
investigations or litigation. But for the anticipation of litigation, Google’s
Communicate-with-Care instructions serve no purpose.
In Johnson v. BAE Systems, a case concerning both spoliation and misrepresentation, the
court sanctioned the plaintiff, finding that she had “repeatedly obfuscated the truth,” “altered
medical records,” and “failed to preserve and produce relevant documents during discovery.”
106 F. Supp 3d. 179, 189–90 (D.D.C. 2015). Although Google has not destroyed evidence, it has
deliberately obfuscated the truth with each request for legal advice when none was needed,
resulting in a failure to produce relevant documents to Plaintiffs during discovery.
45
The Johnson
court further held that recoverability of destroyed files was “irrelevant” because “[t]he potential
for future compliance with discovery requirements is not an excuse for attempting to destroy
computer files.” Id.
As in Johnson, the fact that Google’s privilege gamesmanship has not destroyed the
45
See Paavola v. Hope Vill., No. CV 19-1608 (JDB), 2021 WL 4033101, at *5 (D.D.C. Sept. 4,
2021) (sanctioning a party that “organized a specific effort to shred documents and dispose of
records while it was actively engaged in litigating this case”).
24
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relevant non-privileged communications forever is “irrelevant.” Google employees recognize
that adding artificial indicia of privilege has the same effect as deleting documents. For example,
in responding to a colleague’s request to “threadkill please,” a Google employee wrote “instead
of threadkill, please copy lawyer and make it privileged thread to get internal consultation.”
46
Sanctions are appropriate not only to remedy Google’s abuse but also to deter Google and
others from engaging in this deceptive practice in the future. The D.C. Circuit has explained,
“[t]he district court’s interest in deterrence is a legitimate one, ‘not merely to penalize those
whose conduct may be deemed to warrant such a sanction, but to deter those who might be
tempted to such conduct in the absence of such a deterrent.’” Bonds v. District of Columbia,
93 F.3d 801, 808 (D.C. Cir. 1996) (quoting Nat’l Hockey League v. Metro. Hockey Club,
427 U.S. 639, 643 (1976)). If Google’s conduct goes “unpunished, other litigants might be
tempted to abuse the discovery process in the future.” Monroe v. Ridley, 135 F.R.D. 1, 6–7
(D.D.C. 1990).
Neither Google nor any other large corporation with deep pockets and an army of
in-house lawyers should be able to subvert the attorney-client privilege to hide potential
evidence. Google’s efforts to hide documents make a mockery of the attorney-client privilege—a
centerpiece of legal practice. Accordingly, the conduct is particularly problematic and deserving
of proportional sanctions.
B. Compelled Disclosure Of Silent-Attorney Emails Is A Just And Proportional
Sanction For Google’s Misconduct
The Court should order Google to produce the silent-attorney emails as a reasonable
sanction for the company’s misconduct. Specifically, the Court should compel Google to
46
Bellshaw Decl. Ex. 17 (GOOG-DOJ-21646392).
25
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produce all withheld or redacted communications (including attachments and linked documents)
where in-house counsel was included in a communication between non-attorneys but the
in-house counsel never responded.
This sanction is narrowly tailored and proportional to Google’s misconduct. “To be
just . . . the sanction must never be any more severe than it need be to correct the harm done and
to cure the prejudice created to the other party, unless the opposing party’s behavior has so been
so flagrant or egregious that deterring similar conduct in the future in itself warrants the sanction
sought.” Zenian v. District of Columbia, 283 F. Supp. 2d 36, 38 (D.D.C. 2003) (quoting Walker
v. District of Columbia, 1998 WL 429834, at *1 (D.D.C. June 12, 1998)). Here, Plaintiffs seek to
compel the production of documents directly implicated by Google’s abuse of the attorney-client
privilege. Although we seek no more than what is needed to correct the harm done by Google’s
misconduct, the egregiousness of Google’s conduct also warrants this remedy to deter similar
conduct in the future. This sanction is consistent with the caselaw. For example, in Cohn v.
Guaranteed Rate, Inc., 318 F.R.D. 350, 35355 (N.D. Ill. 2016), the court found plaintiff acted
in bad faith and engaged in sanctionable conduct by moving damaging emails to her personal
email account and deleting them before filing suit. Accordingly, the Cohn court granted
defendants “full access” to the plaintiff’s personal email account to permit a transparent
determination of whether any ostensibly deleted emails could be retrieved. 318 F.R.D. at 356.
It is possible that the proposed sanction could result in the production of documents
where individuals genuinely sought legal advice. However, if a few privileged documents are
contained within the set of silent-attorney emails, it is a consequence of Google’s own
misconduct and a warranted penalty. “[P]reventing a party from asserting the attorney-client
privilege is a legitimate sanction for abusing the discovery process.” In re Teleglobe Commc’ns
26
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Corp., 493 F.3d 345, 386 (3d Cir. 2007), as amended (Oct. 12, 2007). Waiver of privilege is
generally reserved for cases involving “inexcusable conduct” and “bad faith.” DL v. District of
Columbia, 274 F.R.D. 320, 325–26 (D.D.C. 2011). If Google’s intentional misuse of the
attorney-client privilege is not both “inexcusable” and in “bad faith,” Plaintiffs are unsure what
would qualify.
47
Finally, this sanction is necessary as a first step in curing the harm that Google has
inflicted on Plaintiffs and to deter Google from misusing the attorney-client privilege to shield
relevant evidence in the future. Because of Google’s misconduct, Plaintiffs had to wait many
months to receive deprivileged documents. Some deprivileged reproductions even arrived after
the depositions of the relevant Google custodians. Further, Plaintiffs spent significant resources
uncovering and challenging these abuses.
48
Many more challenged documents are outstanding
with limited time in discovery remaining. Immediate disclosure of all the silent-attorney
communications is necessary to correct Google’s abuses. Plaintiffs also reserve the right to seek
adverse inferences and re-open depositions, if necessary.
47
Courts have also held that a party may have a “culpable state of mind” to support sanctions
relating to spoliation “even if the party did not act in bad faith or purposefully destroy records.”
Paavola v. Hope Vill., No. CV 19-1608 (JDB), 2021 WL 4033101, at *12 (D.D.C. Sept. 4,
2021); see also United Med. Supply Co. v. United States, 77 Fed. Cl. 257, 268–69 (2007)
(“Guided by logic and considerable and growing precedent, the court concludes that an injured
party need not demonstrate bad faith in order for the court to impose, under its inherent authority,
spoliation sanctions.”).
48
Courts have held that late and missing productions of documents prejudice plaintiffs. See DL,
274 F.R.D. at 328–29 (holding that plaintiffs suffered prejudice where “delayed production” of
documents “likely left plaintiffs with a compromised trial strategy”); 3E Mobile, LLC v. Glob.
Cellular, Inc., 222 F. Supp. 3d 50, 56–57 (D.D.C. 2016) (“Global has not only incurred
unnecessary costs by having to file a motion to compel and motion for sanctions as a result of
3E’s failure to fulfill its discovery obligations, but Global will also incur additional expenses if it
decides to re-depose witnesses using 3E’s newly-produced documents.”).
27
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II. Compelled Disclosure Of The Silent-Attorney Emails Is Warranted Because
Google Failed To Establish They Are Privileged Communications
Even if the Court declines to find that Google engaged in sanctionable conduct,
compelled disclosure of the silent-attorney emails is warranted because Google has failed to
meet its burden to establish that these communications are privileged.
A. Documents Created Under The Communicate-With-Care Program Are Not
Privileged And Must Be Produced
Google employees adopting the Communicate-with-Care strategy did not seek actual
advice from counsel. Accordingly, the Court should hold that all emails with pretextual requests
for legal advice where an attorney did not respond are not privileged and immediately
producible.
The D.C. Circuit has adopted the “significant purpose” test to evaluate whether a
document is protected as an attorney-client communication. “Sensibly and properly applied, the
test boils down to whether obtaining or providing legal advice was one of the significant
purposes of the attorney-client communication.” In re Kellogg Brown & Root, Inc., 756 F.3d
754, 760 (D.C. Cir. 2014). Emails adopting the Communicate-with-Care instructions inherently
fail this test. Google’s employees following instructions to “request guidance” or “make it
privileged” are not genuinely seeking legal advice. Instead, these employees are adding counsel’s
name and a mock request for advice merely because they have been directed to do so on all
sensitive communications. Thus, neither seeking nor receiving legal advice is a “significant”
purpose of these emails.
Accordingly, the Court should conclude that any document created under the
Communicate-with-Care rubric cannot be withheld or redacted under a claim of privilege. See
Philip Morris USA, Inc., No. Civ.A.99-2496(GK), 2004 WL 5355972, at *6 (Feb. 23, 2004)
(“[D]ocuments provided to an attorney to keep counsel informed, without an implied request for
28
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 29 of 39
legal advice, will not be privileged”). An example demonstrates the point. On April 29, 2020, a
non-attorney Google employee sent the email in Figure 15.
49
Figure 15
As instructed, the Google employee included the talismanic language of “Privileged and
Confidential” and “Seeks advice of counsel – Kate pls. advise,” but then proceeds to directly
address the non-attorney to whom the email is really directed (“Hi Andrei”). Unsurprisingly, the
non-attorney, rather than the attorney, responds.
50
This email, originally withheld on a claim of
privilege, cannot qualify for privilege protection: the intent was not to obtain legal advice from
in-house attorney Kate Lee but, rather, to use Ms. Lee to shield from discovery the email to
49
Bellshaw Decl. Ex. 13 (GOOG-DOJ-18636836).
50
The included attorney does not chime in at any point in the thread. See Bellshaw Dec. Ex. 33
(GOOG-DOJ-18636847).
29
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 30 of 39
Andrei Popescu.
None of the Communicate-with-Care emails are entitled to privilege protection. Google
“may not shield otherwise discoverable documents from disclosure by including an attorney on a
distribution list.” United States ex rel. Barko v. Halliburton Co., 74 F. Supp. 3d 183, 188 (D.D.C.
2014). The caselaw is clear: an attorney recipient, alone, cannot create a privilege. See Minebea
Co. v. Papst, 228 F.R.D. 13, 21 (D.D.C. 2005) (“A corporation cannot be permitted to insulate its
files from discovery simply by sending a ‘cc’ to in-house counsel.” (citation omitted)).
51
The
D.C. Circuit has warned that, “[i]n cases that involve in-house counsel, it is necessary to apply
the privilege cautiously and narrowly ‘lest the mere participation of an attorney be used to seal
off disclosure.’” Neuder v. Battelle Pac. Nw. Nat’l Lab’y, 194 F.R.D. 289, 295 (D.D.C. 2000).
“[D]ocuments 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.” Id. (quoting Pacamor Bearings, Inc. v. Minebea Co., 918 F. Supp. 491, 511
(D.N.H. 1996)); see also Western Trails, Inc. v. Camp Coast to Coast, Inc., 139 F.R.D. 4, 13
(D.D.C. 1991) (“As a general rule, ‘corporate dealings are not made confidential merely by
funneling them routinely through an attorney’” (citation omitted)).
Because Google’s employees were not genuinely seeking legal advice, any emails sent
pursuant to the Communicate-with-Care program are not protected by the attorney-client
privilege and must be produced.
51
Nor does privilege attach just because the communication’s author marks the document
“privileged.” See, e.g., In re Domestic Airline Travel Antitrust Litig., No. MC 15-1404 (CKK),
2020 WL 3496748, at *6, 15 (D.D.C. Feb. 25, 2020), report and recommendation adopted, 2020
WL 3496448 (D.D.C. May 11, 2020).
30
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 31 of 39
B. Because Google Cannot Meet Its Burden To Establish Privilege Over Any
Silent-Attorney Emails, All Those Documents Must Be Produced Unredacted
The Court should conclude that Google’s Communicate-with-Care program undermines
the company’s privilege claims on emails where the attorney did not bother to respond to
purported requests for advice. Such emails should be produced unredacted because it is
impossible to establish that such communications genuinely sought legal advice.
“It is settled law that the party claiming the privilege bears the burden of proving that the
communications are protected.” In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998). To meet
this burden, a party must “present the underlying facts demonstrating the existence of the
privilege” and “conclusively prove each element of the privilege.” Id. (citations omitted)
For the silent-attorney emails, Google cannot make the necessary proofs. Google has
polluted the record regarding which documents contain genuine requests for legal advice to such
an extent that Google cannot make the necessary showing to maintain privilege over many of its
communications. This, of course, was the entire purpose of Google’s Communicate-with-Care
strategy: camouflage the business communications to look like privileged requests for legal
advice. The result, however, is to throw into doubt all of Google’s privilege claims over attorney
communications. Given Google’s conduct, the fact that an email included an attorney and a
request for legal advice proves nothing. Accordingly, such documents cannot—without more—
be withheld on claims of privilege.
An example will make this clear. On February 27, 2021, after this litigation began, a non-
attorney Google employee (Ariel Spivak) emailed another non-attorney (Philipp Schindler) about
a contract negotiation with a third party and carbon-copied several people, including an attorney,
Kate Lee, one of the attorneys appearing on the Communicate-with-Care slides. This email
31
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 32 of 39
appears on Google’s privilege log as a fully withheld document.
52
If, hypothetically, the email
includes the line “Kate, please advise on any legal issues,” Google’s Communicate-with-Care
program makes the simple privilege review of this email impossible. Was the request for advice
genuine or pretextual? Google, of course, has the burden of establishing privilege; therefore, the
document’s ambiguity—created by Google’s own conduct—must undermine Google’s privilege
claim.
The Communicate-with-Care program also renders Google’s privilege log useless as a
functional tool to evaluate privilege claims. A common entry in the log, as for the Kate Lee
email described in the previous paragraph, is “Email seeking legal advice of counsel regarding
contract interpretation.” This offers no insight into the privilege claim when every email
regarding MADAs and RSAs were designed to look like “Email[s] seeking legal advice of
counsel regarding contract interpretation.”
The most vulnerable of Google’s privilege claims are those where the attorney did not
respond to the email allegedly seeking their advice, i.e., the silent-attorney emails. For example,
in Figure 15 above, an attorney (Kate Lee) was included on the “to” line even though the
communication was clearly directed to a non-attorney (Andrei Popescu). Ms. Lee recognized that
there was no genuine request for legal advice, so she simply ignored the email altogether. Thus,
the attorney’s silence is a clear sign that the email did not actually seek legal advice.
After learning of our plans to file a motion to compel, Google offered to re-review its
privilege log for improper privilege claims. Google’s offer, however, misses the point: how will
Google distinguish between genuine requests for legal advice and those adopted under the
Communicate-with-Care formula? The Court should conclude that the attorney’s response on
52
See Bellshaw Decl. Ex. 34 (GGPL-1060262406).
32
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 33 of 39
these emails is the best indicia of the authenticity of the request for legal advice. In short, the
best, minimum indication of whether Google’s internal communications genuinely sought legal
advice is whether Google’s in-house counsel actually responded.
For the category of withheld documents—the email chains where the attorney stayed
silent—the Court should conclude that Google cannot meet its burden to establish privilege
because Google cannot provide sufficient facts “to permit the court to conclude with reasonable
certainty that the privilege applies.” In re Veiga, 746 F. Supp. 2d 27, 34 (D.D.C. 2010); see also
Bartholdi Cable Co. v. FCC, 114 F.3d 274, 280 (D.C. Cir. 1997) (“We have repeatedly held that
the party claiming privilege has the burden of presenting to the court sufficient facts to establish
the privilege.” (internal citation and quotation omitted)).
Plaintiffs’ proposed remedy is the most reasonable solution; it recognizes the ambiguity
Google has created in the privilege process and provides a solution that does not require
Plaintiffs to devote more resources to tracking and uncovering Google’s misconduct. Indeed, the
requested relief is narrowly tailored to documents directly implicated by Google’s
gamesmanship that do not appear to contain any privileged legal advice.
Accordingly, the Court should order the production of all emails (including attachments
and linked documents) in any email chain withheld under a claim of privilege where the included
counsel remained silent. The Court should hold that Google cannot meet its burden to support its
privilege claims over these silent-attorney emails.
53
53
Nor can Google assert work-product protection over this category of documents for
substantially the same reasons. Google has not provided any evidence that an attorney directed
the creation of these silent-attorney emails nor has Google identified specific litigations for
which these business emails were created. See Fann v. Giant Food, Inc., 115 F.R.D. 593, 596
(D.D.C. 1987) (holding that work-product protection does not shield from discovery documents
33
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III. Google Must Provide An Updated And Useful Privilege Log
Google’s Communicate-with-Care program has rendered the company’s privilege log
useless. It should be replaced. Moreover, Google has deprivileged documents in response to
Plaintiffs’ privilege challenges without updating its privilege log. This leaves Plaintiffs without
the ability to assess the sufficiency of its efforts.
Whether the Court compels disclosure pursuant to sanctions or Google’s failure to meet
its burden to establish privilege, Google must provide Plaintiffs with the ability to verify
compliance with the Court’s order and the company’s ongoing privilege obligations. Despite
repeated requests, Google has refused to provide Plaintiffs with the ability to assess the adequacy
of Google’s privilege review, one of many reasons why re-review is an inadequate remedy.
Plaintiffs, therefore, respectfully request the Court order Google to provide (1) a single,
comprehensive privilege log that combines all remaining privilege claims Google is continuing
to assert in this litigation—with any corrections they have made—and removes any entries that
Google is no longer claiming; and (2) an index including all documents Google has deprivileged
thus far and all documents it deprivileges as a result of the Court’s order with information
sufficient to match each original privilege log identifier to the new Bates number. Where any
part of a deprivileged document is still redacted, Google also must provide a revised privilege
log entry justifying the redaction.
CONCLUSION
The Court should sanction Google for its deliberate and deceptive misuse of privilege and
order the company to produce, unredacted, all emails wherein counsel does not reply. If the
that were “prepared in the regular course of compiler’s business, rather than specifically for
litigation, even if it is apparent that a party may soon resort to litigation”).
34
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Court does not sanction Google, the Court should still conclude all emails with pretextual
requests for legal advice are not privileged and Google cannot make the necessary showing to
maintain privilege claims over such emails.
Dated: March 8, 2022 Respectfully submitted,
By: /s/ Kenneth M. Dintzer
Kenneth M. Dintzer
Karl E. Herrmann
U.S. Department of Justice, Antitrust Division
Technology & Digital Platforms Section
450 Fifth Street NW, Suite 7100
Washington, DC 20530
Telephone: (202) 227-1967
Counsel for Plaintiff United States of America
By: /s/ Johnathan R. Carter
Leslie Rutledge, Attorney General
Johnathan R. Carter, Assistant Attorney General
Office of the Attorney General, State of Arkansas
323 Center Street, Suite 200
Little Rock, Arkansas 72201
Counsel for Plaintiff State of Arkansas
By: /s/ Adam Miller
Rob Bonta, Attorney General
Ryan J. McCauley, Deputy Attorney General
Adam Miller, Deputy Attorney General
Paula Blizzard, Supervising Deputy Attorney
General
Kathleen Foote, Senior Assistant Attorney General
Office of the Attorney General,
California Department of Justice
455 Golden Gate Avenue, Suite 11000
San Francisco, California 94102
Counsel for Plaintiff State of California
35
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 36 of 39
By: /s/ Lee Istrail
Ashley Moody, Attorney General
R. Scott Palmer, Interim Co-Director, Antitrust
Division
Nicholas D. Niemiec, Assistant Attorney General
Lee Istrail, Assistant Attorney General
Office of the Attorney General, State of Florida
PL-01 The Capitol
Tallahassee, Florida 32399
Scott.Palmer@myfloridalegal.com
Counsel for Plaintiff State of Florida
By: /s/ Daniel Walsh
Christopher Carr, Attorney General
Margaret Eckrote, Deputy Attorney General
Daniel Walsh, Senior Assistant Attorney General
Charles Thimmesch, Assistant Attorney General
Office of the Attorney General, State of Georgia
40 Capitol Square, SW
Atlanta, Georgia 30334-1300
Counsel for Plaintiff State of Georgia
By: /s/ Scott L. Barnhart
Theodore Edward Rokita, Attorney General Scott
L. Barnhart, Chief Counsel and Director,
Consumer Protection Division
Matthew Michaloski, Deputy Attorney General
Erica Sullivan, Deputy Attorney General
Office of the Attorney General, State of Indiana
Indiana Government Center South, Fifth Floor
302 West Washington Street
Indianapolis, Indiana 46204
Counsel for Plaintiff State of Indiana
36
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 37 of 39
By: /s/ Philip R. Heleringer
Daniel Cameron, Attorney General
J. Christian Lewis, Executive Director of
Consumer Protection
Philip R. Heleringer, Deputy Executive Director of
Consumer Protection
Jonathan E. Farmer, Assistant Attorney General
Office of the Attorney General, Commonwealth of
Kentucky
1024 Capital Center Drive, Suite 200
Frankfort, Kentucky 40601
Counsel for Plaintiff Commonwealth of Kentucky
By: /s/ Christopher J. Alderman
Jeff Landry, Attorney General
Christopher J. Alderman, Assistant Attorney
General
Office of the Attorney General, State of Louisiana
Public Protection Division
1885 North Third St.
Baton Rouge, Louisiana 70802
Counsel for Plaintiff State of Louisiana
By: /s/ Scott Mertens
Dana Nessel, Attorney General
Scott Mertens, Assistant Attorney General
Michigan Department of Attorney General
P.O. Box 30736
Lansing, Michigan 48909
Counsel for Plaintiff State of Michigan
By: /s/ Stephen M. Hoeplinger
Stephen M. Hoeplinger
Assistant Attorney General
Missouri Attorney General’s Office
815 Olive St., Suite 200
St. Louis, Missouri 63101
Counsel for Plaintiff State of Missouri
37
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 38 of 39
By: /s/ Hart Martin
Lynn Fitch, Attorney General
Hart Martin, Special Assistant Attorney General
Crystal Utley Secoy, Assistant Attorney General
Office of the Attorney General, State of
Mississippi
P.O. Box 220
Jackson, Mississippi 39205
Counsel for Plaintiff State of Mississippi
By: /s/ Rebekah J. French
Austin Knudsen, Attorney General
Rebekah J. French, Assistant Attorney General,
Office of Consumer Protection
Office of the Attorney General, State of Montana
P.O. Box 200151
555 Fuller Avenue, 2nd Floor
Helena, Montana 59620-0151
Counsel for Plaintiff State of Montana
By: /s/ Rebecca M. Hartner
Rebecca M. Hartner, Assistant Attorney General
Alan Wilson, Attorney General
W. Jeffrey Young, Chief Deputy Attorney General
C. Havird Jones, Jr., Senior Assistant Deputy
Attorney General
Mary Frances Jowers, Assistant Deputy Attorney
General
Office of the Attorney General, State of South
Carolina
1000 Assembly Street
Rembert C. Dennis Building
P.O. Box 11549
Columbia, South Carolina 29211-1549
Counsel for Plaintiff State of South Carolina
38
Case 1:20-cv-03010-APM Document 326-1 Filed 03/21/22 Page 39 of 39
By: /s/ Bret Fulkerson
Bret Fulkerson, Deputy Chief, Antitrust Division
Kelsey Paine, Assistant Attorney General
Office of the Attorney General, Antitrust Division
300 West 15th Street
Austin, Texas 78701
Counsel for Plaintiff State of Texas
By: /s/ Gwendolyn J. Lindsay Cooley
Joshua L. Kaul, Attorney General
Gwendolyn J. Lindsay Cooley, Assistant Attorney
General
Wisconsin Department of Justice
17 W. Main St.
Madison, Wisconsin 53701
Counsel for Plaintiff State of Wisconsin
39
