The Sound Of "Silent Attorneys": Judge Orders Google To Re-Review Emails Withheld For Privilege To Which Counsel Never Responded

Gunnar Larson g at
Wed Nov 23 19:16:05 PST 2022

Back in May, we wrote about
pending motion before the U.S. District Court for the District of Columbia,
in which the U.S. Department of Justice and several state attorneys general
("DOJ Plaintiffs") sought to sanction Defendant Google and compel
disclosure of all emails withheld for privilege that legal counsel received
but never responded to (affectionately referred to as "silent attorney"
emails). The DOJ Plaintiffs claimed the silent attorney emails constituted
artificial requests for legal advice intended to conceal sensitive business
communications from discovery. After the parties briefed the issues, the
judge ordered that the parties identify cases in support of their positions
on whether the judge had the power to issue sanctions for pre-litigation
conduct, and further ordered Google to produce a random sample of 210 of
the 21,000 "silent attorney" emails for the court's *in camera* review.

The same day our blog post was published, the judge made a decision on
these motions at a status conference, and the transcript has recently been
made public. In short, the judge concluded that he did not have inherent
authority to issue sanctions with respect to this particular pre-litigation
conduct, but he did order Google to re-review any of the privileged "silent
attorney" emails that had not already been re-reviewed for privilege.

The DOJ Plaintiffs identified several cases in which courts have exercised
their inherent authority to sanction pre-litigation conduct, while Google
identified none that resembled the facts of this case. The court
acknowledged that while the cases cited by DOJ Plaintiffs did demonstrate
that the judge has inherent authority to sanction pre-litigation conduct,
none of the cases would allow him to sanction the particular type of
pre-litigation conduct here – that is, the alleged practice of copying
lawyers on emails in order to conceal sensitive business information from
discovery. The judge grouped the facts in DOJ Plaintiffs' cases into two
categories of "bad" but distinguishable pre-litigation conduct: (1) conduct
that affects the ability to bring, maintain, or defend the litigation
itself (e.g., employee accessing records from employer's server and using
those records to bring and prosecute the lawsuit), and (2) spoliation of
evidence. The judge noted that the conduct in the present case aligned more
closely with the spoliation cases, but emphasized the important distinction
that unlike cases in which evidence is spoliated, the documents here are
still available, and are in fact being produced to the DOJ Plaintiffs.

The judge also provided an analysis of the random sample of 210 documents
produced for *in camera* review, noting that Google ended up de-designating
and producing 26 documents out of the 210 that it had previously withheld
as privileged. Of the remaining 184 documents, the judge was satisfied that
approximately 75% were clearly privileged, while approximately 25% required
more context for a full determination of privilege, but did not appear to
be designated as such in bad faith.

The judge expressed concern, however, with the fact that 26 of the 210
documents – approximately 12% – were "de-privileged" upon re-review. When
the court originally ordered Google to provide a 210 document sample, this
number represented 10% of the approximately 21,000 "silent attorney"
documents being withheld as privileged at the time. Since then, Google had
already re-reviewed and produced an additional 5,000 or so documents,
leaving approximately 16,000 still at issue at the time of the court

The judge asked Google whether it had re-reviewed all of the withheld
"silent attorney" emails with the same level of scrutiny as the 210
provided to the court. Google's counsel did not provide a clear answer,
explaining that some of the documents had already been re-reviewed, while
others had not, and that different lawyers might reasonably come to
different conclusions regarding privilege. The judge acknowledged that this
might be true, but stressed that the court and the plaintiffs should still
feel satisfied that all documents are equally scrutinized with respect to
privilege. He reasoned that, assuming the remaining documents would be
de-privileged at the same rate as the 210-document sample, 12% of 16,000 –
1,920 – documents was not an insubstantial number. Therefore, the judge
ordered Google to conduct a re-review of any of the 16,000 documents that
had not yet been re-reviewed, using a level of scrutiny that is consistent
with the 210-document sample review, and to produce any documents they
determine are not privileged.

One takeaway from this case is the need for counsel to take real care when
withholding emails on privilege grounds that were sent to an attorney but
received no response. Reviewing each email and having consistent criteria
for privilege determinations will go a long way to helping avoid drawn-out
and expensive discovery
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