Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of August 5-11. Here’s what’s happening.
Google Accused of Rule 37 Violations in Antitrust Case
One of the biggest news stories from last week — a federal judge declaring Google a monopoly — has an eDiscovery element, too.
The plaintiffs asked U.S. District Court Judge Amit Mehta to sanction Google, accusing it of “systemic destruction of documents” and “flagrant misuse of the attorney-client privilege.”
- Google reportedly deleted employee chat messages even after a legal hold was in place. Under a long-running company policy, the default was to delete those messages after 24 hours unless a “history on” feature was activated. (The policy changed after the plaintiffs moved for sanctions.)
- Company employees were trained to include attorneys on emails dealing with sensitive issues and written communications related to certain agreements. That way, those communications could be claimed as privileged. “As a result, Google’s outside counsel in this case initially withheld tens of thousands (of) records on the grounds of privilege, which ultimately were re-reviewed, deemed not privileged, and produced to Plaintiffs,” Mehta wrote.
- Employees were also trained to avoid certain words and concepts in their communications, including “market share,” “dominance” and “network effects.” Even metaphors on war and sports were discouraged. Employees were told to assume that everything they write might be seen by regulators. According to Mehta: “It trained its employees, rather effectively, not to create ‘bad’ evidence.”
Mehta ultimately decided not to impose sanctions, saying they weren’t needed. Even so, the judge said he was “taken aback” by Google’s actions: “The court’s decision not to sanction Google should not be understood as condoning Google’s failure to preserve chat evidence. Any company that puts the onus on its employees to identify and preserve relevant evidence does so at its own peril. Google avoided sanctions in this case. It may not be so lucky in the next one.”
Are Email Attachments Always Privileged?
If an email is privileged, does that privilege automatically extend to any documents attached to that message, even if those attachments wouldn’t qualify for privilege on their own?
It’s a question that was raised in a case we mentioned recently, Linet Americas, Inc. v. Hill-Rom Holdings, Inc. Michael Berman digs into the attachments issue in this blog post.
The court found that, generally speaking, those attachments are privileged, though there’s a wrinkle. As the court put it: “[C]ommunications of facts are privileged even if the original facts are not. Thus, when letters to counsel included certain attachments, the fact that those documents were attached may be privileged, even if the originals are not.”
The attachments deserve privilege because — by disclosing the fact that they were attached to a particular message — opposing counsel might be able to reverse-engineer the content of the privileged message.
However, the actual documents themselves should still be produced on their own if they are not privileged. They just don’t need to be tied to a particular email.
The court said there might be an exception if the original documents didn’t exist in any other form but as an attachment. But that isn’t what happened in Linet Americas, Inc. v. Hill-Rom Holdings, Inc.
Other recent eDiscovery news and headlines:
