I have given speeches on the attorney-client privilege (How To Keep Secrets), so I was naturally interested in Google’s six unsuccessful attempts to conceal an email. As reported in Law Technology News in 2012, a Google engineer wrote an email after meeting with in-house counsel at Google that contained admissions that will hurt Google’s defense of a patent infringement case filed against it by Oracle. The last draft and the email sent were labeled by the engineer as privileged, and copies were sent to in-house counsel. The draft and the sent email were withheld from production in discovery (in a lawsuit, each side is allowed to request and obtain relevant, unprivileged documents created and maintained by its opponent), and were listed on a privilege log. So far, so good.
Eight additional drafts of the email were saved on the engineer’s computer. These drafts lacked the privilege designation. The online search done by Google in preparation for producing emails to Oracle failed to flag these drafts, even though their content was identical to the withheld documents. These drafts were produced to Oracle. Google tried six ways (motions and various appeals) to get the document returned and to prohibit it from being introduced in evidence. All failed.
1. Treat all email as discoverable. Don’t write anything that you wouldn’t want your mother, your child, your best friend or your worst enemy to read.
2. Instruct your employees, especially those who interact with in-house counsel about the attorney client privilege. Only information submitted to seek legal and which contains legal advice is privileged. In-house lawyers cannot legitimately conceal documents that relate to business or technical matters unrelated to legal issues. If the engineer at Google had labeled all drafts as privileged, the search program would have flagged them. They should not have been withheld, but at least the lawyers would not have been ambushed when Oracle used the emails.
3. Before producing emails, they need to be reviewed by your law firm. Yes it is a big expense, but in a big case the alternative is to risk defeat. Anyone reviewing the emails would have seen that they were identical to the documents withheld.
4. Understand your email search software: what it will do and what it won’t do. Google was apparently unaware that its software would flag documents labeled privilege but would not flag identical documents that lacked this label.
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*Source: Kelston, H. (2012, February 17). Google’s EDD Search Blunder in Oracle Case: the $1 Billion Mistake? Law Technology News. Retrieved February 17, 2012 here.