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It makes sense to ask your lawyer legal questions, but I think this complaint is more about CCing lawyers on sensitive communications so you can write "Attorney

It makes sense to ask your lawyer legal questions, but I think this complaint is more about CCing lawyers on sensitive communications so you can write "Attorney Client Privileged" despite not actually wanting to discuss the matter with your attorneys. I'm almost surprised they didn't just put a lawyer on every mailing list and put the magic words in a mandatory footer.

efitz 5y ago
IANAL, but the trainings I took emphasized that regardless of the P&C label, it was NOT P&C if you weren't asking the lawyer a question, and any part of the discussion that happened before someone engaged counsel was not P&C. We also were instructed not to add people to such threads, but rather request that the lawyer do it.
- robrenaud 5y ago
  I am also not a lawyer, but I definitely saw a lot of a behavior where one would CC lawyer cat, and start the email with "please advise" on emails that contained sensitive information but no legal questions. It bothered me a little, but I also wanted to be able to discuss sensitive numbers in emails and also be productive, so I kinda ignored it.
aikinai 5y ago
No one does this and the training specifically says it won't work. You have to address the communication directly to the counsel with a specific question. And if there are too many people in the CC, that's also evidence that it wasn't really a question to counsel and it would be deprivileged.
- droopyEyelids 5y ago
  That's exactly what the government is asking for. Per the article: >The government wants access to email chains where attorneys were copied, but never responded. so it sounds like an existing thread, where someone threw legal on the cc list after, and legal never felt it was appropriate to respond.
  - aikinai 5y ago
    Yeah, I'm not an expert, but my understanding is that's clearly not privileged. It's not surprising the government is trying to get access to them, but I also don't think it's evidence of Google trying to hide anything. There is training, but a lot of people ignore it and treat Legal haphazardly.
    - otterley 5y ago
      The article claims that even the CEO of Google did this when sending an email to the CEO of YouTube. These are people who should know better, and if true, then it’s not exactly the innocuous case of the inexperienced individual accidentally marking a communication as attorney-client privileged.
    - kevincox 5y ago
      I don't think "attorneys didn't respond" is enough evidence to declare "that's clearly not privileged". An attorney missing an email is irrelevant to whether or not an email is privileged. The more important factors are probably 1. Was the message actually to the attorney, or were they just included for the appearance of privileged and 2. Was a response actually expected from the attorney?
- tsimionescu 5y ago
  Of course the training can't say that it will work, but it obviously does. It means that in the initial discovery, these emails won't be sent to the other party, claiming privilege. Then, if somehow the other party finds out that they exist, they need to litigate this particular case to decide if such and such email was indeed privileged or not. Now, if a company had an official policy of misusing their legal team in this way, they could probably be assured for that in itself, the lawyers who accepted it personally penalized etc. So, of course the company trainings will tell you very specifically not to do this, and perhaps lawyers will even reply from time to time to emails that are trying to abuse this system. But it seems, if the government is right, that in this case this was all a rise trying to establish plausible deniability for all involved of a widespread practice.
  - bladegash 5y ago
    Information being withheld during discovery due to privilege still has to be disclosed to the other party as being withheld. It is called a privilege log and is exactly for the purposes of being able to litigate the propriety of said withholding/applicability of whatever privilege.
Frost1x 5y ago
Well, if you copied the attorney on every email it would cease to hold ambiguity on if the communication was actually private or not. If you just copy every communication with an attorney no judge would believe it. If you keep it down to some reasonable percentage of communications, you're granted benefit of the doubt in the ambiguous case (innocent until proven guilty and all).
luxuryballs 5y ago
Hey that’s a pretty good idea.
- nmfisher 5y ago
  It's also not legally correct. Just putting the words "privileged and confidential" on a document and copying an in-house lawyer doesn't render it subject to privilege. That being said, the practice is incredibly widespread. While it borders on unethical, I'm yet to see anyone actually penalized for slapping P&C on every e-mail willy-nilly. At worst, courts just rule that privilege doesn't apply and that a document must be produced. Even that is rare, for obvious reasons (if opposing litigants don't even know a document exists, how can they argue that the "P&C" label wasn't legitimate?).
  - bladegash 5y ago
    Withholding a document due to privilege has requirements, namely production of a privilege log. It should pretty much never be the case that an opposing party is unaware of a document’s existence due to privilege.

efitz 5y ago

IANAL, but the trainings I took emphasized that regardless of the P&C label, it was NOT P&C if you weren't asking the lawyer a question, and any part of the discussion that happened before someone engaged counsel was not P&C. We also were instructed not to add people to such threads, but rather request that the lawyer do it.

robrenaud 5y ago
I am also not a lawyer, but I definitely saw a lot of a behavior where one would CC lawyer cat, and start the email with "please advise" on emails that contained sensitive information but no legal questions. It bothered me a little, but I also wanted to be able to discuss sensitive numbers in emails and also be productive, so I kinda ignored it.

aikinai 5y ago

No one does this and the training specifically says it won't work. You have to address the communication directly to the counsel with a specific question. And if there are too many people in the CC, that's also evidence that it wasn't really a question to counsel and it would be deprivileged.

droopyEyelids 5y ago
That's exactly what the government is asking for. Per the article: >The government wants access to email chains where attorneys were copied, but never responded. so it sounds like an existing thread, where someone threw legal on the cc list after, and legal never felt it was appropriate to respond.
- aikinai 5y ago
  Yeah, I'm not an expert, but my understanding is that's clearly not privileged. It's not surprising the government is trying to get access to them, but I also don't think it's evidence of Google trying to hide anything. There is training, but a lot of people ignore it and treat Legal haphazardly.
  - otterley 5y ago
    The article claims that even the CEO of Google did this when sending an email to the CEO of YouTube. These are people who should know better, and if true, then it’s not exactly the innocuous case of the inexperienced individual accidentally marking a communication as attorney-client privileged.
  - kevincox 5y ago
    I don't think "attorneys didn't respond" is enough evidence to declare "that's clearly not privileged". An attorney missing an email is irrelevant to whether or not an email is privileged. The more important factors are probably 1. Was the message actually to the attorney, or were they just included for the appearance of privileged and 2. Was a response actually expected from the attorney?
tsimionescu 5y ago
Of course the training can't say that it will work, but it obviously does. It means that in the initial discovery, these emails won't be sent to the other party, claiming privilege. Then, if somehow the other party finds out that they exist, they need to litigate this particular case to decide if such and such email was indeed privileged or not. Now, if a company had an official policy of misusing their legal team in this way, they could probably be assured for that in itself, the lawyers who accepted it personally penalized etc. So, of course the company trainings will tell you very specifically not to do this, and perhaps lawyers will even reply from time to time to emails that are trying to abuse this system. But it seems, if the government is right, that in this case this was all a rise trying to establish plausible deniability for all involved of a widespread practice.
- bladegash 5y ago
  Information being withheld during discovery due to privilege still has to be disclosed to the other party as being withheld. It is called a privilege log and is exactly for the purposes of being able to litigate the propriety of said withholding/applicability of whatever privilege.

Frost1x 5y ago

Well, if you copied the attorney on every email it would cease to hold ambiguity on if the communication was actually private or not. If you just copy every communication with an attorney no judge would believe it. If you keep it down to some reasonable percentage of communications, you're granted benefit of the doubt in the ambiguous case (innocent until proven guilty and all).

luxuryballs 5y ago

Hey that’s a pretty good idea.

nmfisher 5y ago
It's also not legally correct. Just putting the words "privileged and confidential" on a document and copying an in-house lawyer doesn't render it subject to privilege. That being said, the practice is incredibly widespread. While it borders on unethical, I'm yet to see anyone actually penalized for slapping P&C on every e-mail willy-nilly. At worst, courts just rule that privilege doesn't apply and that a document must be produced. Even that is rare, for obvious reasons (if opposing litigants don't even know a document exists, how can they argue that the "P&C" label wasn't legitimate?).
- bladegash 5y ago
  Withholding a document due to privilege has requirements, namely production of a privilege log. It should pretty much never be the case that an opposing party is unaware of a document’s existence due to privilege.