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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 i

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.

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.