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

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 …

  1. A Non e-mouse Silver badge
    Meh

    "Don't be evil".

    'Nuff said.

    1. b0llchit Silver badge
      Devil

      This statement was sent CC legal, just to be sure. Can't have the icon becoming part of an inquiry.

      1. NoneSuch Silver badge
        Mushroom

        "Do evil," makes more money than "Do no evil."

    2. Philip Stott

      Beat me to it.

      It's almost like they changed their motto to "Be as evil as you can possibly be".

      Evil Empire

      1. Terry 6 Silver badge

        Re: Beat me to it.

        Err. I think that's ""Be as evil as you can possibly get away with".

    3. random boffin
      Devil

      The new Google

      It's almost like they changed their motto to "Be as evil as you can possibly be".

      -yes that was right after they moved to new shell company 'Alphabet'!

  2. Will Godfrey Silver badge
    Unhappy

    Not holding my breath

    The have people who's only job is obfuscation.

  3. General Purpose

    Consequences?

    IANAL but it seems in some jurisdictions, a lawyer that recommended such practices might face consequences from their State Bar and/or courts.

    1. DS999 Silver badge

      Re: Consequences?

      Most lawyers tend to be quite careful about incriminating themselves, and know exactly where the line is drawn both legally and ethically.

      I'm willing to bet they said something like "if you have forwarded an email to a lawyer asking for legal advice, depending on circumstances you may be able to withhold that email from the discovery process for that reason alone but doing it as a matter of course is a legally questionable tactic so I can't say I'd recommend it".

      If the guy he said that to decides to run with the scheme anyway (knowing there is an implied "wink wink") the lawyer will immediately produce the email or memo where he said the above, getting himself off the hook. The in-house lawyers receiving these bogus queries for legal advice were probably instructed not to dig too deep into the reasons why, or understood from the context it was in their best interest not to ask any questions and simply provide the advice requested even if it didn't make sense.

      The execs who ran with the scheme will claim they misunderstood the legal advice given, or say that since they were told only that its "questionable" they felt they were acting on the advice of their legal team.

      And that is how diffusion of blame happens in a corporation. No one does anything that can get them convicted as an individual, even though the corporation as a whole has acted in a highly illegal manner.

      1. Yet Another Anonymous coward Silver badge

        Re: Consequences?

        In the days of prohibition makers of fruit juice would label boxes with a warning: "do not mix contents of box with x lbs of sugar and keep in a warm place for Y months - or an alcoholic beverage may result"

        wink emoji

    2. JoeCool Bronze badge

      Re: Consequences?

      That's not a credible plausible denial coming from the "Senior Vice President and General Counsel (now Google's Chief Legal Officer)"

      But the bar is very low. Look at the behaviour of David Boise's law firm while working with Theranos.

      Anyone not a lawyer would be charged with criminal harrasment and racketeering.

  4. MiguelC Silver badge

    Inspired by the Ambrose Bierce's Devil's Dictionary

    CLOG: acronym for Chief Legal Officer at Google, whose role is to block any investigation into the firm's practices

  5. Anonymous Coward
    Anonymous Coward

    IANAL, but I would hope that if you've shown that you abused the concept of attorney-client privilege, the burden of proof would shift and there'd be an assumption that nothing was privileged.

    Something like how if you discuss privileged topics with non attorney outsiders, you lose the privilege.

    1. DS999 Silver badge

      I agree

      I think that they should be required to turn over ALL documents they previously withheld as part of attorney/client privilege, and be forced to justify each document to the judge that weren't covered by this harebrained scheme they think really should have attorney/client privilege.

      The problem with a scheme like this is so long as you are emailing outsiders, they may produce the emails themselves either voluntarily or via subpoena, and then the court wonders "why was this email not produced by Google?" When they hear the claim that it was withheld over attorney/client privilege, and see the flimsy reasoning, the whole scheme blows up.

      Even for internal only emails all you need is one whistleblower who produces such an email and the court will learn of this scheme. It just seems like a terrible idea all around - even if you never have discovery you are telling employees that the company wants them to act unethically and/or illegally. If you do have discovery, the odds you get found out are near 100% for anything big enough to involve external emails or insider whistleblowers.

  6. bazza Silver badge

    Gee, Thanks Google

    Google are damaging everybodies rights.

    By "weaponising" privilege so, this goes at least some way to justifying any legisalation that erodes client-counsel protections. Should legislators really get in a hump about this tactic they might just pass such a law. And then, oh boy, everyone loses the right for their private discussions with their lawyer to be protected. The best that could be hoped for was some proportionality to any such change in the law - i.e. the loss of protection applies only to individuals working in a giga-corp.

    And, honestly, what bell ends for even trying such a trick. They're basically saying in their new-starter training "we take the absolute piss with the law whereever we think we can get away with it, this is how you help us do this". That does not translate into a long term, sustainable and profitable business model. It practically guarantees that the consequences of regulatory intervention will be at the heavier end of the scale.

    It's not even as if they'd be able to keep such a trick confidential; they employ a lot of people, it takes only one to spill the beans, and there's ex-staffers to worry about too. So they were always going to be caught pulling this trick if they put it into practice.

    1. Anonymous Coward
      Anonymous Coward

      Re: Gee, Thanks Google

      Um. No.

      Nothing here is specific to Google.

      This is just standard legal practice for a big company.

      There really is no reason to complain about the basic "if uncertain ask a lawyer first"

      You've never tried to find "relevant" email in a search have you? Absolute nightmare.

      Frankly if someone is stupid enough to include a desclaimer text for stuff that is iffy just ask and search for it!

      1. YetAnotherJoeBlow

        Re: Gee, Thanks Google

        This is just standard legal practice for a big company. hahaha

        So, how deep does the stench go? In fact, I would subpoena the employees that did so - let

        them feel some heat - maybe the employees might say no the next time.

      2. Anonymous Coward
        Anonymous Coward

        Re: This is just standard legal practice for a big company.

        Yeah, and the big company is Google.

        I won't call you a Google shill but duck typing and that.......

      3. bazza Silver badge

        Re: Gee, Thanks Google

        There's a big difference between this being standard practice in a big company that is playing fast and loose with a load of laws all over the world as a part of its business model, and standard practice in a big company that by and large is trying to be an honest corporate citizen.

    2. keithpeter Silver badge
      Windows

      Re: Gee, Thanks Google

      "The best that could be hoped for was some proportionality to any such change in the law - i.e. the loss of protection applies only to individuals working in a giga-corp."

      I thought that the article suggests that the DoJ are asking the court to decide? Along the lines that a quick cc to a lawyer with no specific question and no trace of any reply is not sufficient to claim the protection. More specific actual questions together with actual replies would still be protected therefore.

      Icon: what do I know?

      1. bazza Silver badge

        Re: Gee, Thanks Google

        They are asking a court to decide. What's interesting is whether that sets a precedent. Suppose the court agrees with the DoJ. Regardless of whether or not that sets an official, general-purpose precedent it does show that it's possible, and therefore becomes a tool on the DoJ's armoury that it can ask another court to agree to, in another investigation.

        So what does that do? Well, it means that if you're an employee in another company and you have a genuine reason to consult the company counsel and you think you might need that to be privileged, you then need a reply from the counsel. Without that reply, whatever you sent them is feasibly not privileged.

        If it's possible that your initial email to the counsel could be considered self-incriminating, you're now in a fix, because you've commited it to record. What do you do, send another email say "answer, dammit"?

        Where this gets sketchy is with the Wireless and Telegraphy Act. Write your email to the counsel in the wrong manner, and get no reply, it's possible you've commited an offence under that act even if you did nothing else.

  7. martinusher Silver badge

    Surely a contradiction?

    How can you claim that someone is "falsely asking for legal advice" because the only way they'll know that they don't need it is if they ask for it and are told its not necessary. Yes, its obvious that Google's pulling a fast one and has effectively snookered the DoJ. But they haven't done anything wrong, legally speaking. Anyone can ask for legal advice about anything.

    What's surprising is that nobody's thought of this before. Its so obvious its brilliant.

    However, the DoJ will fight it because they believe that the Bill of Rights is missing a critical amendment -- "Heads we win, Tails you lose".

    1. nintendoeats

      Re: Surely a contradiction?

      Intent is a critical part of the law. If I drive a car into my deepest enemy on purpose, that is murder. If a traffic light malfunctions and I hit my deepest enemy because we both had green (lets say its night time and they are wearing all-black, so I had no hope of seeing them), that is not a crime because I had no intent to do anything either malicious or negligent.

      If you can demonstrate (to the "reasonable man" standard) that an email was sent for no purpose other than gaining legal protection, I do not believe that deeming that email unprotected weakens the legitimate use of attorney-client privilege. It would be a very difficult thing to prove, it would probably be impossible for only a single email exchange. You would need a pattern of abuse...like this...

  8. Anonymous Coward
    Anonymous Coward

    Not sure...

    Attorney-client confidentiality can be overridden by a court judgement (usually they use an independent party to decide if material is actually protected). Sounds like they are on a fishing trip and can't find what they want... and they don't have enough evidence to justify requesting some of the emails.

    If Google were found to be doing this, then a court would just reduce the bar for discovery, so Google would only be damaging themselves.

    1. hoola Silver badge

      Re: Not sure...

      I don't think Google actually care. They have so much money that so far they have proved to be untouchable.

      This is the fundamental problem, there is a cultural issue round these tech mega-corps that they believe they are above regulation. They have so much money they can employ vast legal teams whose sole purpose is to fight the regulator and any any other inconvenient legal challenges. Even if they only succeed in delaying, those delays are so long (years) that it is irrelevant. The cost of fighting the case and causing the delays is outweighed by the profit made during the delay.

      I just don't know where you go but essentially billions of people are powerless in how their data is used and monetarised. Even fining them does not work as the fines are derisory and are equally contested.

      Fines need to be in 10s or 100s of billions and legal frameworks have to be put around the corporations involved that make it very difficult to weasel out of the judgment.

      Now for that to happen needs massive international cooperation, something that I just cannot see happening. The same issue surrounds the accounting and tax arrangements for these (and many other, usually US based) companies.

  9. Danny 5
    Mushroom

    Don't be evil

    Well that certainly ages like milk, didn't it? Every time you think they can't stoop any lower, they prove you wrong.

  10. aerogems Silver badge
    Devil

    Won't likely happen, but

    The Google corporate counsel should be looking at being disbarred for going along with this scam. They would have known full well that this was legally dubious at best, and the fact that they continued to go along with it should result in professional sanctions.

    I'm also hoping the judge in this case orders Google to turn over absolutely every single document they have to some third party who will then go through them and decide if something should be privileged or not with Google footing the bill.

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