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Google Accused by DOJ of Hiding Behind Sham Privilege Claims

March 22, 2022, 7:29 PM

Alphabet Inc.'s Google has trained its employees to label virtually all correspondence connected to its search engine business as privileged in an effort to hide the company’s anti-competitive conduct, U.S. Department of Justice attorneys said in a court filing.

Government attorneys are asking a federal judge to order Google and Alphabet, to turn over tens of thousands of documents “relating to the exclusionary search-distribution agreements at the heart of Google’s monopolies.” It argues that the documents aren’t protected attorney-related material but instead are part of a yearslong practice reaching to the highest levels of the company.

“In 2016, Google instructed employees to create artificial indicia of privilege for all written communications related to revenue-share agreements and Mobile Application Distribution Agreements (MADAs), the exclusionary agreements at the heart of this action,” the filing said.

In addition to seeking documents, Justice Department attorneys want sanctions on the company and have requested a hearing before D.C. District Judge Amit P. Mehta.

Google denied the allegations in a written statement Tuesday.

“Our teams have conscientiously worked for years to respond to inquiries and litigation, and suggestions to the contrary are flatly wrong,” the statement said. “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.”

The fight for documents is part of a 2021 antitrust lawsuit filed by the Department of Justice accusing Alphabet of paying billions of dollars each year to mobile phone makers such as Apple and Samsung, and to web browser companies such as Opera and Mozilla, to make Google their default search engine.

“Between its exclusionary contracts and owned-and-operated properties, Google effectively owns or controls search distribution channels accounting for roughly 80 percent of the general search queries in the United States,” the government’s lawsuit alleges.

The Justice Department lawsuit is joined by attorneys general from 11 states and threatens to reshape the multibillion-dollar search engine industry dominated by Google. The lawsuit also seeks records from Apple, Google, Yelp, and other companies, which have also asserted attorney-client privilege over certain documents but haven’t clashed with the government.

Google created its “Communicate with Care” program around 2015 with instructions on how to handle sensitive information, including advice on adding company lawyers to emails as a way to make the information confidential. In many cases the attorneys never responded or weighed in on whether the information should be protected by attorney-client privilege, the government filing alleges.

“For years, Google has systematically trained its employees to camouflage ordinary course business documents to look like privileged discussions,” DOJ lawyers wrote.

To contact the reporter on this story: John Holland at jholland1@bloombergindustry.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Rob Tricchinelli at rtricchinelli@bloomberglaw.com