DOJ pushes for sanctions against Google as part of anti-trust lawsuit

DOJ pushes for sanctions against Google as part of anti-trust lawsuit

On March 21, the U.S. Department of Justice, along with attorneys general in 14 different states, asked a federal judge to sanction Google for allegedly misusing attorney/client privilege in order to shelter e-mails from litigation.

CC-ing attorneys in e-mail communications, Ars Technica reporter Jon Brodkin notes, is not uncommon in the business world. But the DOJ is alleging that Google has taken the practice to an “egregious” extreme.

In its request for Google to be sanctioned, the DOJ argued, “Google's institutionalized manufacturing of false privilege claims is egregious, spanning nearly a decade and permeating the company from the top executives on down.”

According to the DOJ, “In a program called 'Communicate with Care,' Google trains and directs employees to add an attorney, a privilege label, and a generic 'request' for counsel's advice to shield sensitive business communications, regardless of whether any legal advice is actually needed or sought. Often, knowing the game, the in-house counsel included in these Communicate-with-Care emails does not respond at all.”

The DOJ noted that “it is well settled that copying an attorney” in an e-mail “does not confer privilege" by itself.

The DOJ’s March 21 request for a sanction of Google is part of an anti-trust lawsuit in which the DOJ alleges that Google has become a monopoly. Google isn’t the internet’s only search engine; others range from (formerly Ask Jeeves) to Yahoo. But it is the most widely used.

In a March 28 letter, the DOJ endorsed House and Senate bills that would forbid major tech platforms, including Google, from giving preferential treatment to their own products.

Attorney Jeffrey Jacobovitz, who is now with the firm Arnall Golden Gregory LLP and formerly represented the Federal Trade Commission (FTC), told Axios, “The fact that the DOJ’s regulatory goals are consistent with the Hill show the seriousness of the DOJ’s antitrust concerns in the technology sector.”

In January, the Senate Judiciary Committee approved the American Competition and Innovation Act. But Axios reporter Ashley Gold notes, “The bills still have to pass the full Senate and House, and face a packed congressional agenda along with bitter partisanship.”

Attorney Daniel Francis of Harvard Law School told Axios, “It’s always helpful to know where the DOJ stands on competition legislation, but it’s not obvious that this letter will change the legislative dynamics in Congress around the bill.”

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