US Justice Department says Google misuses attorney-client privilege to hide documents

The DOJ filed an antitrust lawsuit against Google in 2020 over having an 'unfair monopoly over search.'


The US Department of Justice has accused Google of training its employees on how to shield business communications from discovery in cases of legal disputes "by using false requests for legal advice." As Axios reports, the DOJ has told the judge overseeing its antitrust case against the tech giant that Google instructs employees to add in-house lawyers to written communication, apply attorney-client privilege labels to them and make a request for legal advice even when it's not needed. The department is now asking the judge to sanction the company "for its extensive and intentional efforts to misuse the attorney-client privilege to hide business documents relevant" to the case.

In the brief (PDF) its lawyers wrote for the judge, the DOJ said Google refers to the practice as "Communicate with Care" and that it first started no later than 2015. New employees are reportedly directed to follow the practice without discussion on whether it should only be used when legal advice is truly needed. In addition, Google allegedly provided the same training to teams handling search-distribution for the department's (and other authorities') antitrust cases.

Google specifically told those teams to follow the practice for any written communication containing revenue-sharing agreements and mobile application distribution agreements, based on the presentation slides the DOJ included in its brief. Those agreements are central to the case. If you'll recall, the DOJ accused Google of having an unfair monopoly over search and search-related advertising in its 2020 antitrust lawsuit. It also questioned its terms for Android device manufacturers that force them to pre-load Google apps and set Google as the default search engine.

According to the DOJ, statements such as "adding legal" or "adding [attorney] for legal advice" appear in thousands of Google documents. These emails apparently lacked any specific request for advice and attorneys rarely respond to them. In the brief, the department said the practice "pervades the entire company" and is being used even by Alphabet CEO Sundar Pichai.

The DOJ is now asking the court to hold Google's conduct as sanctionable and to order it to immediately produce "all withheld or redacted emails where no attorney responded to the purported request for legal advice."

Google spokesperson Julie Tarallo McAlister defended the company in a statement sent to Axios, however, calling the allegations "flatly wrong." McAlister said:

"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."