Silicon Valley behemoth Alphabet (aka Google) has adopted a practice of shielding employees' emails "confidential" by copying attorneys onto the email, slapping a privilege label on it, and asking a “perfunctory” request for legal advice, notes the National Law Review. The DOJ asked a federal court to sanction the company and this long-running communications practice as part of a larger antitrust investigation. It appears that at least 140,000 emails have been identified to have used such tactics to keep them from appearing in discovery. 

• “This is not a discovery dispute,” said Kenneth Dintzer of the DOJ. “This is an attempt made by one party to undermine the discovery process.” While agreeing with the DOJ that the practice is definitely "eyebrow-raising", ​​U.S. District Judge Amit Mehta responded that "I just don’t know what I can do about it.” He added, “You’re essentially asking me to penalize a company for its policies."

• According to the National Law Journal, Williams & Connolly partner John Schmidtlein, Google's lead attorney for the case, argued that the email practice (dubbed "Communicate With Care") was done as a way to train Google employees to be aware and discerning in what they write in emails.

Antitrust Heat

In October 2020, under then-AG Bill Barr, the DOJ filed an antitrust case alleging that Google "has entered into a series of exclusionary agreements that collectively lock up the primary avenues through which users access search engines, and thus the internet". In September 2021, it was revealed that an additional case was being prepared against Google—this time under AG Merrick Garland. The investigation this time around centers on Google's apparent monopoly over online advertising, and collusion with Meta (aka Facebook) to achieve it.

The Verdict

What seems to be happening here is Alphabet wants to bog down the DOJ with a mountain of work. And the DOJ, for its part, has a decision to make: does it fold to Alphabet and set a terrible precedent, or allow itself to get bogged down, but pursue Google to the end?