7 ms·

Google routinely hides emails from litigation by CCing attorneys, DOJ alleges

104 points by HieronymusBosch 5y ago

deleted 5y ago
[deleted]
greenyoda 5y ago
Big discussion yesterday: https://news.ycombinator.com/item?id=30760923 https://news.ycombinator.com/item?id=30760923
vmception 5y ago
> The DOJ also said, "it is well settled that copying an attorney does not confer privilege" on its own. One of my financial success goals was to have the lawyers that would be able to cite the case law supporting a statement like that. I have that for some industries (and its a fools errand to have it for all industries all the time), and have learned a lot along the way. Its interesting to see organizations employ the utility of lawyers to this degree. Aside from having reality shaping counsel, I like that it raises the cost of investigation by orders of magnitude. Makes the government think twice, or thrice, before inconveniencing anyone.
- gonzo41 5y ago
  Imagine if that publicly traded company was pouring PFAS chemicals into drinking water supplies and using the same tactic. Except the local towns couldn't afford to fight so just had to put up with the externality of cancer in their children. But we're glad their not inconvenienced by an investigation?
  - vmception 5y ago
    You can imagine whatever you want. You chose to imagine an uncollaborative and harmful thing, there are just as many benign things to imagine.
    - revolvingocelot 5y ago
      You chose to open a discussion on how great it is to have such sharp lawyers that their very presence discourages government investigation into a corporation's doings. What sort of doings require such shielding? Collaborative and harmless ones, surely? I can't imagine many benign things that one would feel the need to cloak behind attorney-client privilege. Maybe a surprise party for a DOJ investigator?
      - vmception 5y ago
        We live in different worlds I don’t care enough to make examples but I do care enough to notice how routine this can become once you’ve gone out of the way to lay down the building blocks. Google and some email clients suggest who to CC nowadays. You dont have to think about it. The counsel is already hired and there. Just CC and who cares what is being discussed. Thats what the article is about. Think about the difference in power, many people get a lawyer for a reactionary reason. Because the threat and damage already occurred, the utility of a lawyer is extremely limited. Alternatively when a lawyer is there preemptively, at all times, the threat is simply harder to materialize. My point is that its much less likely that people were consciously trying to hide something - most of the time - which is my point. Everything can have a semblance of legal advice, putting the onus on the government to parse that first or decide if its even worth parsing that, in comparison to just getting a subpoena rubber stamped and railroading someone into prison. One is more expensive than the other. “Hm we don’t know what they did, what legal strategy they employed, and even if we got a subpoena on the little evidence we have, we cant use any of their communications for evidence, attempting parallel construction will leave us caught red handed, and we already know they have the funds to see this through, maybe we should stick with someone that cant afford their base level of rights” Like a lawyer, it is extremely easy for me to compartmentalize my appreciation of the tools from the theoretical negative consequence you chose to imagine. I chose to imagine all the people that take plea deals from an overzealous government.
        vba616 5y ago
        >My point is that its much less likely that people were consciously trying to hide something The whole point of a policy is that people aren't consciously acting according to their whim. Like a document destruction policy. But large companies often have hundreds of lawsuits going at any given time. So the policy would be introduced with the conscious intent that they would like to hide as much as they can regarding all of them.
  - danielmarkbruce 5y ago
    You don't need money to get a lawyer, you just need a case that can promise a big payday for a lawyer. If this scenario occurred, lawyers would be lining up to take the case for a small fee of 30% of profits, or whatever they can get these days.
- Traster 5y ago
  I don't know why you'd be happy having the investigation cost orders of magnitude more, in a functioning democracy that's just straight up more money on your tax bill. Oh wait...
  - vmception 5y ago
    Tax bill? The goal would be to have lawyers for that too But more pragmatically, the agencies themselves just use their budget allocation on lower hanging fruit
    - Traster 5y ago
      Yeah that's exactly the point I was making "I can spend my way out of this democratically passed law" is not really democracy is it. It's capitalism at the cost of democracy.
    - unclenoriega 5y ago
      "Ideally, I can have enough money and power to benefit from society without contributing to its upkeep or being bound by its rules."
      - vmception 5y ago
        my thoughts on it are a bit deeper than that, but the simpler summary of those thoughts (which I haven't detailed) are that the inspiration didn't come from nowhere. there are enough examples where thats the case.
ykevinator2 5y ago
I think I'm on googles side on this one. We can change the rule if we don't like it but it's more clever than anything abusive.
- kadoban 5y ago
  It's not actually what the rule is, it's just Google's lame attempt at creating a loophole. It's not even clever, criminals have used the same idea, starting in analog form, forever.
  - vba616 5y ago
    >it's just Google's lame attempt at creating a loophole. That seems like sloppy terminology to me. I don't know why people want to call it a loophole. If you steal a cookie from the cookie jar, with the (accurate) expectation that you probably won't be caught, there is no loophole. At least to me, the word implies a hole in the rules, not an issue with enforcement.
    - parineum 5y ago
      The loophole is that you stole the cookie while you were naked because they turn off the cameras when you're naked. The loophole is how you hid and the crime is what was hidden.
    - deleted 5y ago
      [deleted]
    - kadoban 5y ago
      Completely agreed, I should have used different wording.
- usednet 5y ago
  It’s pretty clearly abusive and not under the scope of AC privilege. In fact multiple cases have resulted in companies with similar behavior being forced to turn over the material.
more_corn 5y ago
Can confirm. Although… I was just told that if I had a legit question for a lawyer I should not worry about bothering them because it could shield the conversation.
cupcake-unicorn 5y ago
LOL, what's next, CCing a doctor or therapist so it's covered under HIPPA? If it worked for Tony Soprano...
deleted 5y ago
[deleted]
rnk 5y ago
I also worked at a fang company. When I was there they decided after losing a big govt case they would auto-delete your email after some number of months, like 6 months, plus they would limit your email storage to a small amount to force you to constantly delete things to send and receive email. They were careful to explain it wasn't to hide anything, it was IT efficiency or some bs. It was an exchange system, so you had to constantly delete your old email to free up space. Then the final piece of the puzzle was most of us were semi-randomly under the auspices of a giant lawsuit (imagine 1000 random developers in a division, everyone employed on xyz date is included). They told us to save relevant email to the lawsuit, without providing us any mechanism to do this, or clarifying what email is relevant. This was Microsoft 20 years ago. They also told us about the cc the lawyer trick and that it wouldn't work. It was extremely clear they were trying to avoid recording conversations. It's many years later and my current employer auto-deletes slack messages after a week (so everyone copies them to google docs to save things). We waste a ton of time trying to save off important things. At the same time many many important communications seem to happen on slack. Plus we have zoom meetings, we can record them, but they get auto-deleted after some number of months. We incentivized the lawyers to waste time of the engineers.
- newusertoday 5y ago
  wow this was exactly my experience few years ago. I was pissed off because there was lot of tribal information about products in older mails which was not documented anywhere and people working on products moved on to different teams/left the company and we used to rely heavily on these older mails to get product/customer insights.
colburnmh 5y ago
And this is different from...? I agree that it's not what's intended for ACP. But lots of companies use it and don't bother to educate their employees on the rules of what constitutes appropriate usage of ACP tagging.

deleted 5y ago

[deleted]

greenyoda 5y ago

Big discussion yesterday: https://news.ycombinator.com/item?id=30760923 https://news.ycombinator.com/item?id=30760923

vmception 5y ago

> The DOJ also said, "it is well settled that copying an attorney does not confer privilege" on its own. One of my financial success goals was to have the lawyers that would be able to cite the case law supporting a statement like that. I have that for some industries (and its a fools errand to have it for all industries all the time), and have learned a lot along the way. Its interesting to see organizations employ the utility of lawyers to this degree. Aside from having reality shaping counsel, I like that it raises the cost of investigation by orders of magnitude. Makes the government think twice, or thrice, before inconveniencing anyone.

gonzo41 5y ago
Imagine if that publicly traded company was pouring PFAS chemicals into drinking water supplies and using the same tactic. Except the local towns couldn't afford to fight so just had to put up with the externality of cancer in their children. But we're glad their not inconvenienced by an investigation?
- vmception 5y ago
  You can imagine whatever you want. You chose to imagine an uncollaborative and harmful thing, there are just as many benign things to imagine.
  - revolvingocelot 5y ago
    You chose to open a discussion on how great it is to have such sharp lawyers that their very presence discourages government investigation into a corporation's doings. What sort of doings require such shielding? Collaborative and harmless ones, surely? I can't imagine many benign things that one would feel the need to cloak behind attorney-client privilege. Maybe a surprise party for a DOJ investigator?
    - vmception 5y ago
      We live in different worlds I don’t care enough to make examples but I do care enough to notice how routine this can become once you’ve gone out of the way to lay down the building blocks. Google and some email clients suggest who to CC nowadays. You dont have to think about it. The counsel is already hired and there. Just CC and who cares what is being discussed. Thats what the article is about. Think about the difference in power, many people get a lawyer for a reactionary reason. Because the threat and damage already occurred, the utility of a lawyer is extremely limited. Alternatively when a lawyer is there preemptively, at all times, the threat is simply harder to materialize. My point is that its much less likely that people were consciously trying to hide something - most of the time - which is my point. Everything can have a semblance of legal advice, putting the onus on the government to parse that first or decide if its even worth parsing that, in comparison to just getting a subpoena rubber stamped and railroading someone into prison. One is more expensive than the other. “Hm we don’t know what they did, what legal strategy they employed, and even if we got a subpoena on the little evidence we have, we cant use any of their communications for evidence, attempting parallel construction will leave us caught red handed, and we already know they have the funds to see this through, maybe we should stick with someone that cant afford their base level of rights” Like a lawyer, it is extremely easy for me to compartmentalize my appreciation of the tools from the theoretical negative consequence you chose to imagine. I chose to imagine all the people that take plea deals from an overzealous government.
      - vba616 5y ago
        >My point is that its much less likely that people were consciously trying to hide something The whole point of a policy is that people aren't consciously acting according to their whim. Like a document destruction policy. But large companies often have hundreds of lawsuits going at any given time. So the policy would be introduced with the conscious intent that they would like to hide as much as they can regarding all of them.
- danielmarkbruce 5y ago
  You don't need money to get a lawyer, you just need a case that can promise a big payday for a lawyer. If this scenario occurred, lawyers would be lining up to take the case for a small fee of 30% of profits, or whatever they can get these days.
Traster 5y ago
I don't know why you'd be happy having the investigation cost orders of magnitude more, in a functioning democracy that's just straight up more money on your tax bill. Oh wait...
- vmception 5y ago
  Tax bill? The goal would be to have lawyers for that too But more pragmatically, the agencies themselves just use their budget allocation on lower hanging fruit
  - Traster 5y ago
    Yeah that's exactly the point I was making "I can spend my way out of this democratically passed law" is not really democracy is it. It's capitalism at the cost of democracy.
  - unclenoriega 5y ago
    "Ideally, I can have enough money and power to benefit from society without contributing to its upkeep or being bound by its rules."
    - vmception 5y ago
      my thoughts on it are a bit deeper than that, but the simpler summary of those thoughts (which I haven't detailed) are that the inspiration didn't come from nowhere. there are enough examples where thats the case.

ykevinator2 5y ago

I think I'm on googles side on this one. We can change the rule if we don't like it but it's more clever than anything abusive.

kadoban 5y ago
It's not actually what the rule is, it's just Google's lame attempt at creating a loophole. It's not even clever, criminals have used the same idea, starting in analog form, forever.
- vba616 5y ago
  >it's just Google's lame attempt at creating a loophole. That seems like sloppy terminology to me. I don't know why people want to call it a loophole. If you steal a cookie from the cookie jar, with the (accurate) expectation that you probably won't be caught, there is no loophole. At least to me, the word implies a hole in the rules, not an issue with enforcement.
  - parineum 5y ago
    The loophole is that you stole the cookie while you were naked because they turn off the cameras when you're naked. The loophole is how you hid and the crime is what was hidden.
  - deleted 5y ago
    [deleted]
  - kadoban 5y ago
    Completely agreed, I should have used different wording.
usednet 5y ago
It’s pretty clearly abusive and not under the scope of AC privilege. In fact multiple cases have resulted in companies with similar behavior being forced to turn over the material.

more_corn 5y ago

Can confirm. Although… I was just told that if I had a legit question for a lawyer I should not worry about bothering them because it could shield the conversation.

cupcake-unicorn 5y ago

LOL, what's next, CCing a doctor or therapist so it's covered under HIPPA? If it worked for Tony Soprano...

deleted 5y ago

[deleted]

rnk 5y ago

I also worked at a fang company. When I was there they decided after losing a big govt case they would auto-delete your email after some number of months, like 6 months, plus they would limit your email storage to a small amount to force you to constantly delete things to send and receive email. They were careful to explain it wasn't to hide anything, it was IT efficiency or some bs. It was an exchange system, so you had to constantly delete your old email to free up space. Then the final piece of the puzzle was most of us were semi-randomly under the auspices of a giant lawsuit (imagine 1000 random developers in a division, everyone employed on xyz date is included). They told us to save relevant email to the lawsuit, without providing us any mechanism to do this, or clarifying what email is relevant. This was Microsoft 20 years ago. They also told us about the cc the lawyer trick and that it wouldn't work. It was extremely clear they were trying to avoid recording conversations. It's many years later and my current employer auto-deletes slack messages after a week (so everyone copies them to google docs to save things). We waste a ton of time trying to save off important things. At the same time many many important communications seem to happen on slack. Plus we have zoom meetings, we can record them, but they get auto-deleted after some number of months. We incentivized the lawyers to waste time of the engineers.

newusertoday 5y ago
wow this was exactly my experience few years ago. I was pissed off because there was lot of tribal information about products in older mails which was not documented anywhere and people working on products moved on to different teams/left the company and we used to rely heavily on these older mails to get product/customer insights.

colburnmh 5y ago

And this is different from...? I agree that it's not what's intended for ACP. But lots of companies use it and don't bother to educate their employees on the rules of what constitutes appropriate usage of ACP tagging.