Back in May, we wrote about a 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.
privileged material
The Sound of “Silent Attorneys”: DOJ Alleges Google Fakes Attorney-Client Privilege by CCing Lawyers Who Never Respond
If a request for legal advice goes unanswered, is it really a request for legal advice? According to the U.S. Department of Justice and several state attorneys general (“DOJ Plaintiffs”) in an antitrust action against Google, United States, et. al. v. Google, in the U.S. District Court for the District of Columbia, the answer to this question should be “no,” at least where the unanswered request for legal advice is part of an internal company practice intended to conceal sensitive, non-privileged documents from discovery.
Margaret Dale Explores Ways to Protect Privilege After Data Breach
Proskauer’s Vice-Chair of the Litigation Department and Minding Your Business blog editor, Margaret Dale was recently featured on Thomson Reuters’ Practical Law, where she explores ways that clients can protect privilege after a data breach. The first, “Protecting Privilege Basics,” identifies steps that can be taken by…