Steps Companies Can Take To Mitigate Privilege Labeling Risk

A recent decision on sanctions that the U.S. Department of Justice (“DOJ”) sought in antitrust litigation against Google illustrates how corporations’ training regarding attorney-client privilege can go awry.

In U.S. v. Google, Inc., No. 1:20-cv-03010-APM (D.D.C. May 12, 2022), the DOJ moved for sanctions against Google related to what DOJ called “silent attorney” emails – email chains originating with non-attorneys that had a privilege banner and a request for legal advice to an attorney on the chain, but with no response from the attorney.

The DOJ claimed that the requests for legal advice were pretexts for false privilege claims to protect against the disclosure of controversial emails. It asserted that because attorneys did not respond to the messages, there was no actual intent to seek legal advice or service. The DOJ also pointed to slides from Google’s “Communicate With Care” training program, which educated employees on attorney-client privilege and ways to document privilege. The DOJ characterized the program as an effort to instruct Google employees to hide relevant, non-privileged communications with “pretextual” privilege claims.

Google defended the program as a reasonable initiative that educated employees on privilege and confidentiality and that its purpose was not to encourage employees to make improper claims of privilege. Contrary to the government’s arguments, Google said that the privilege headers that employees inserted on emails were not dispositive privilege claims. Rather, attorneys who reviewed the documents for privilege were trained “not to base determinations on the mere presence of attorneys or on ‘privileged and confidential markings.’” Google said that its litigation counsel made the final privilege calls. Google identified 140,000 emails in this category and initially produced 89,000 of them. After its re-review, Google maintained its privilege claims on 21,000 of the disputed emails. At oral argument, the court described Google’s conduct as “eyebrow-raising,” but stated that it doubted the court had the authority to grant a motion for sanctions for conduct that antedated the onset of litigation. The court instructed Google to provide a random sample of 210 “silent attorney” emails for in camera review.

Ultimately, the court denied sanctions, but it cautioned Google that the remaining withheld or redacted “silent attorney” communications should be reviewed with the same rigor and assurances from Google’s litigation counsel as applied to the sample that the court reviewed in camera. Although Google prevailed on the sanctions motion, an important takeaway from the decision is that companies should assess their in-house procedures and employee training programs regarding privileged communications to mitigate the risks of the potential appearance of bad faith privilege claims.

As may have been the case here, a good-faith training program intended to help ensure that privileged communications are identified as such can go awry if misunderstood or misapplied by employees. Expressly stating in an email to in-house counsel that legal advice is sought can be important in protecting privileged communications because of the “two hats” that in-house counsel figuratively wear. In-house counsel often serve in the dual role of legal advisor and business advisor, making it difficult to determine whether an email seeks legal advice or non-legal business advice unless the request for legal advice is explicit. It is just as important—if not even more important—that non-attorney employees only identify a communication as privileged if the communication contains a legitimate request for legal advice.

By framing their training programs to appropriately address this risk, companies can reduce motions practice and costly re-review of documents that can result in loss of sustainable privilege claims, potential sanctions or remedial measures, and reputational harm. Companies and their counsel should avoid overly broad privilege claims before withholding, redacting, and logging documents as “privileged.”

In training non-attorney employees about attorney-client privilege and the possible use of privilege banners or other privilege identifiers, it is important to emphasize that merely labeling a communication as “attorney-client privileged” or copying an attorney does not make the communication privileged. The communication, in fact, has to be for purposes of obtaining or facilitating an attorney’s provision of legal advice.

Moreover, improperly labeling communications as privileged can—and often will—require costly additional privilege review, result in privilege disputes, and potentially threaten the company’s legitimate privilege claims. Improperly labeling documents as privileged can create the impression, with the opposing party and the court, that the company is abusing privilege, which erodes trust in the company’s privilege claims. Furthermore, companies should reinforce such training by frequently providing feedback to employees regarding what is privileged and best practices to protect privileged material.

Steps companies can take to mitigate the risk of employees improperly labeling communications as privileged include:

1. Instruct employees to be sparing in using “Privileged and Confidential” headers. Companies should instruct employees to label emails as privileged only if there is a good faith intent or purpose to obtain or facilitate an attorney’s provision of legal advice. Attorneys should not be copied on a communication having nothing to do with legal advice solely for the purpose of trying to protect it from disclosure.
2. Instruct employees to separate requests for legal advice from non-privileged messages when possible and make requests for legal advice as specific as possible. In the Google case, several initially withheld emails were almost entirely non-privileged except for a single line that read “cc’ed to [attorney name]” for “legal advice” or “privilege.” If an employee is seeking legal advice or providing information for that purpose, it would be prudent for the employee to inquire of counsel specifically for those purposes and confine the message to only those employees who need to know that legal assistance has been requested.
3. Train in-house counsel regarding privilege. In addition to training non-attorney employees, companies should train in-house counsel, especially those embedded with business-oriented teams, on pertinent nuances and development of privilege law and gray areas in corporate privilege. In particular, companies should train in-house counsel on the tests courts use to determine whether dual-purpose communications are privileged. As part of this education, in-house counsel should be encouraged to clearly delineate in their communications when they are providing legal advice versus non-legal advice. Further, such training should educate in-house counsel in determining whether non-attorneys’ communications to them are privileged communications in connection with legal advice, or non-privileged communications regarding non-legal matters.
4. In-house counsel should provide non-attorney employees with feedback on whether messages are correctly labeled as “privileged.” In-house counsel embedded in product or deal teams have a particular advantage – they can provide real-time feedback to employees who are mistaken about whether communications are privileged. This feedback can reinforce a company’s training on privilege and potentially head off costly disputes and motion practice over otherwise non-privileged documents.
5. Educate managers and other decision-makers regarding the role of protective orders in discovery. To ensure that employees understand how information is protected in litigation, training can address how a well-crafted protective order can limit other parties’ access to non-privileged, but highly confidential, documents that must be produced during litigation. This knowledge may help lay employees understand that trade secrets can be protected, even during litigation, without unnecessarily invoking attorney-client privilege.
6. At the outset of litigation, share any standard training given to employees regarding privilege with outside counsel. This practice should be part of the initial conversations between the client and counsel at the onset of litigation. If counsel and clients review the in-house training and practices together, they can set out an early strategy for handling situations that are or may prove problematic (or misleading) to reviewers.

In sum, privilege reviews, logging, and related disputes are major discovery expenses, particularly in complex cases. Improper or abusive privilege claims can cause reputational harm that adversely impacts even unrelated litigation. Clear, candid, and frequent communication – between in-house counsel and employees, and between companies and their outside counsel – can help avoid these issues. In addition, companies should anticipate problems that might arise from employee training programs and privilege guidelines and proactively mitigate the risks of overzealous assertions of privilege.

Gareth Evans is a partner at Redgrave LLP and James Hertsch is an e-discovery attorney.