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Alphabet’s Google urged a judge hearing a US antitrust case against it to reject the Justice Department’s request that it be sanctioned, saying it had not abused attorney-client privilege.
The department had asked Judge Amit Mehta to sanction Google, saying the company’s “Communicate with Care” program was sometimes a “game” to shield communications that did not genuinely fall under attorney-client privilege.
In a filing dated Thursday, Google said that “allegations of sanctionable misconduct are baseless” and a misreading of a small number of slides used to train employees.
Google also said it was conferring with the government on which emails that are indicated as potentially falling under attorney-client privilege genuinely do. It said it had given the government some of the affected documents.
“Plaintiffs come nowhere close to proving the bad-faith misconduct that is required to strip a party of its privilege protections,” Google said in its filing.
“Google has explicitly and repeatedly instructed its employees to shield important business communications from discovery by using false requests for legal advice,” attorneys for the Justice Department wrote in a filing.
“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.”
In one such example from 2018, CEO Sundar Pichai emailed YouTube CEO Susan Wojcicki to discuss an upcoming press story.
“Attorney Client Privileged, Confidential,” Pichai wrote, copying Google’s then-general counsel Kent Walker. “Kent pls advise.”
Yet Walker apparently never replied to the thread, which the Justice Department said was “directed to a non-attorney” about “a non-legal press issue.”
The email was initially withheld by Google in an ongoing antitrust case and was only produced after the Justice Department challenged it, the department said.
The Justice Department filed the lawsuit against Google in 2020, accusing it of violating antitrust law in its handling of its search business. Trial was set for September 2023.
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