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> The record demonstrates otherwise. An abundance of evidence establishes that Google employees routinely used Chat to discuss substantive business topics, incl

> The record demonstrates otherwise. An abundance of evidence establishes that Google employees routinely used Chat to discuss substantive business topics, including matters relevant to this antitrust litigation. > Google left employees largely on their own to determine what Chat communications might be relevant to the many critical legal and factual issues in this complex antitrust litigation. All true. I'm just glad I wasn't subpoena'ed. "Off the record" on a chat was often interpreted as "anything goes" including by people who should have known better. It should not have been, and I definitely heard lawyers say "if it's something you wouldn't want to come out in court, then don't say it via the computer, whether it's on OR off the record."

tracker1 4y ago
Some businesses, not sure on google, will actually have lawyers on most meetings in order to circumvent subpoenas as it's "protected" discussions that way... I don't recall the details, just rememember seeing a report on the practice.
- vkou 4y ago
  I've always been told by corporate training that unless a lawyer is being asked a particular legal question, simply including them in a conversation does not raise an attorney-client confidentiality shield.
- gumby 4y ago
  Just having a lawyer in the room doesn’t make the conversation privileged. It’s a conversation with the lawyer that is privileged, so they actually have to be a participant.
  - runnerup 4y ago
    Uhh...it's also not privileged, if the lawyer is participating in the discussion about ongoing planning of criminal activity. http://doctorcleveland.blogspot.com/2018/04/don-corleones-guide-to-attorney-client.html http://doctorcleveland.blogspot.com/2018/04/don-corleones-gu... > [The lawyer] Hagen is not only party to that decision but party to a detailed discussion of methods. He cannot pretend attorney-client privilege here either.
    - gumby 4y ago
      Also true, as the recent crime-fraud exception case demonstrated in one of the trump investigations this very month. So it’s pretty narrow.
- AlbertCory 4y ago
  What @vkou said. Just including the lawyer doesn't make it privileged.
- twoodfin 4y ago
  If you want to hear SCOTUS explore the limits of attorney-client privilege, including extensive discussion on just this practice, the oral arguments for In re Grand Jury are well worth a listen: https://www.oyez.org/cases/2022/21-1397 https://www.oyez.org/cases/2022/21-1397 (SCOTUS ultimately decided to punt the case.)
- aikinai 4y ago
  Google’s legal training specifically says that this won’t work and don’t do it anyway.
- runnerup 4y ago
  "If you're committing an ongoing crime and you involve your lawyer in it, there's no privilege involved. That's not an attorney. It's an accomplice." http://doctorcleveland.blogspot.com/2018/04/don-corleones-guide-to-attorney-client.html http://doctorcleveland.blogspot.com/2018/04/don-corleones-gu... > Later on, when Don Corleone is incapacitated, [the lawyer] Hagen sits in on a five-person strategy meeting where at least three murders are ordered. Hagen can't claim attorney-client privilege for any of that. Passing the bar is not a license to kill. Hagen is sitting there when his foster-brother Sonny orders a disloyal subordinate named Paulie Gatto killed. If the Gatto murder ever went to trial, Hagen would not be a lawyer but a defendant.
  - bmitc 4y ago
    Sounds like the comment you replied to is a case of this: https://www.youtube.com/watch?v=75iv3RKQUAM https://www.youtube.com/watch?v=75iv3RKQUAM
- ocdtrekkie 4y ago
  This is explicitly something Google has been found having done, and been told it won't work. Generally speaking, if the lawyer's input is not requested, and the lawyer does not respond, the attempt to claim it's privileged will be thrown out. Here is the DOJ accusing Google of that exactly, a year ago, related to the same case: https://arstechnica.com/tech-policy/2022/03/google-routinely-hides-emails-from-litigation-by-ccing-attorneys-doj-alleges/ https://arstechnica.com/tech-policy/2022/03/google-routinely...
alach11 4y ago
I wonder how corporations are going to adapt to a world where more and more meetings are transcribed and summarized by language models. Adopting that technology, while it's a productivity boost, will expose companies to vastly greater amounts of liability. There are a lot of comments that can get made off-hand in a meeting that would never make it into chat, let alone an email.
- TheRealDunkirk 4y ago
  Just do what my company does, and delete all Teams chats in 24 hours! So secure! So protective! So useful, when you need to refer to what was told you last week, before you understood you needed it.
  - lesuorac 4y ago
    Uh did you read the article cause it addresses that idea.
  - AlbertCory 4y ago
    indeed, the notion of "on the record" was introduced because a lot of genuinely useful non-sensitive info was conveyed in chat, and people needed to save it.
  - sgent 4y ago
    This court held that once any employee is under a litigation hold then the transcripts need to be retained indefinitely.
    - midoridensha 4y ago
      The company can just delete them anyway, per their policy. What's the court going to do about it? Jail someone? When has a court ever jailed someone in a big corporation for contempt of court?
      - sgent 4y ago
        The court can find the company (Google) liable, or direct the Jury to consider any hidden evidence would be adverse to Google. If Google loses a (civil) antitrust case to 38 attorney generals it will cost them 100's of billions. https://www.law.cornell.edu/rules/frcp/rule_37 https://www.law.cornell.edu/rules/frcp/rule_37 (A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
soco 4y ago
And how is that "off the record" supposed to work anyway? Once you said the phrase, the chat automagically stops sending the texts, or they autodestroy or something? And people get their memories erased like in MIB? Because this looks more like a detective movie scene and less like all day reality.
- AlbertCory 4y ago
  after a day, it's deleted off the servers.

tracker1 4y ago

Some businesses, not sure on google, will actually have lawyers on most meetings in order to circumvent subpoenas as it's "protected" discussions that way... I don't recall the details, just rememember seeing a report on the practice.

vkou 4y ago
I've always been told by corporate training that unless a lawyer is being asked a particular legal question, simply including them in a conversation does not raise an attorney-client confidentiality shield.
gumby 4y ago
Just having a lawyer in the room doesn’t make the conversation privileged. It’s a conversation with the lawyer that is privileged, so they actually have to be a participant.
- runnerup 4y ago
  Uhh...it's also not privileged, if the lawyer is participating in the discussion about ongoing planning of criminal activity. http://doctorcleveland.blogspot.com/2018/04/don-corleones-guide-to-attorney-client.html http://doctorcleveland.blogspot.com/2018/04/don-corleones-gu... > [The lawyer] Hagen is not only party to that decision but party to a detailed discussion of methods. He cannot pretend attorney-client privilege here either.
  - gumby 4y ago
    Also true, as the recent crime-fraud exception case demonstrated in one of the trump investigations this very month. So it’s pretty narrow.
AlbertCory 4y ago
What @vkou said. Just including the lawyer doesn't make it privileged.
twoodfin 4y ago
If you want to hear SCOTUS explore the limits of attorney-client privilege, including extensive discussion on just this practice, the oral arguments for In re Grand Jury are well worth a listen: https://www.oyez.org/cases/2022/21-1397 https://www.oyez.org/cases/2022/21-1397 (SCOTUS ultimately decided to punt the case.)
aikinai 4y ago
Google’s legal training specifically says that this won’t work and don’t do it anyway.
runnerup 4y ago
"If you're committing an ongoing crime and you involve your lawyer in it, there's no privilege involved. That's not an attorney. It's an accomplice." http://doctorcleveland.blogspot.com/2018/04/don-corleones-guide-to-attorney-client.html http://doctorcleveland.blogspot.com/2018/04/don-corleones-gu... > Later on, when Don Corleone is incapacitated, [the lawyer] Hagen sits in on a five-person strategy meeting where at least three murders are ordered. Hagen can't claim attorney-client privilege for any of that. Passing the bar is not a license to kill. Hagen is sitting there when his foster-brother Sonny orders a disloyal subordinate named Paulie Gatto killed. If the Gatto murder ever went to trial, Hagen would not be a lawyer but a defendant.
- bmitc 4y ago
  Sounds like the comment you replied to is a case of this: https://www.youtube.com/watch?v=75iv3RKQUAM https://www.youtube.com/watch?v=75iv3RKQUAM
ocdtrekkie 4y ago
This is explicitly something Google has been found having done, and been told it won't work. Generally speaking, if the lawyer's input is not requested, and the lawyer does not respond, the attempt to claim it's privileged will be thrown out. Here is the DOJ accusing Google of that exactly, a year ago, related to the same case: https://arstechnica.com/tech-policy/2022/03/google-routinely-hides-emails-from-litigation-by-ccing-attorneys-doj-alleges/ https://arstechnica.com/tech-policy/2022/03/google-routinely...

alach11 4y ago

I wonder how corporations are going to adapt to a world where more and more meetings are transcribed and summarized by language models. Adopting that technology, while it's a productivity boost, will expose companies to vastly greater amounts of liability. There are a lot of comments that can get made off-hand in a meeting that would never make it into chat, let alone an email.

TheRealDunkirk 4y ago
Just do what my company does, and delete all Teams chats in 24 hours! So secure! So protective! So useful, when you need to refer to what was told you last week, before you understood you needed it.
- lesuorac 4y ago
  Uh did you read the article cause it addresses that idea.
- AlbertCory 4y ago
  indeed, the notion of "on the record" was introduced because a lot of genuinely useful non-sensitive info was conveyed in chat, and people needed to save it.
- sgent 4y ago
  This court held that once any employee is under a litigation hold then the transcripts need to be retained indefinitely.
  - midoridensha 4y ago
    The company can just delete them anyway, per their policy. What's the court going to do about it? Jail someone? When has a court ever jailed someone in a big corporation for contempt of court?
    - sgent 4y ago
      The court can find the company (Google) liable, or direct the Jury to consider any hidden evidence would be adverse to Google. If Google loses a (civil) antitrust case to 38 attorney generals it will cost them 100's of billions. https://www.law.cornell.edu/rules/frcp/rule_37 https://www.law.cornell.edu/rules/frcp/rule_37 (A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

soco 4y ago

And how is that "off the record" supposed to work anyway? Once you said the phrase, the chat automagically stops sending the texts, or they autodestroy or something? And people get their memories erased like in MIB? Because this looks more like a detective movie scene and less like all day reality.

AlbertCory 4y ago
after a day, it's deleted off the servers.