Brown v. Google LLC

Background

The dispute concerned an email chain from September through December 2021 among Google employees. Google initially withheld the entire chain as protected by the attorney-client privilege and attorney-work-product protection. After court-ordered re-review, Google produced a partially redacted version on July 21, 2022. The motion concerned only the portions that Google had left unredacted.

Plaintiffs quoted and attached the document in filings related to their requests for relief and supplemental sanctions. Google later moved to strike plaintiffs’ reliance on the document, arguing that it was privileged and protected work product and that Google had properly reclaimed it under the parties’ stipulated electronic-discovery agreement.

Privilege and waiver

The court said that declarations from Google’s in-house counsel and a Google program manager supported treating the entire email chain as protected when considered in isolation. But the court also considered evidence that Google had intentionally removed redactions from some portions during its re-review, did not assert privilege after the document appeared in the record, referred to the document in its own filings, and had made inconsistent statements about whether the document was included in the court-ordered re-review.

The court therefore was not inclined to find that the unredacted portions were protected. It did not definitively resolve that question because it held that, even if the entire document had been protected, Google had waived attorney-client privilege and work-product protection as to the unredacted portions.

The court rejected Google’s argument that the electronic-discovery agreement allowed it to reclaim the document under any circumstances. The agreement modified some requirements concerning inadvertent disclosure and the timing of a clawback, but the court found that it did not clearly authorize reclaiming a document after the holder’s actions amounted to intentional disclosure. The court also noted that Google had not taken reasonable steps to prevent disclosure of the unredacted portions, as required under the governing federal evidence rule.

Other requests and ruling

The court denied Google’s motion to strike. It also denied plaintiffs’ request for an in-camera review—that is, a private judicial review—of the entire document to identify additional unprotected sections. The court denied plaintiffs’ request to investigate waiver under the crime-fraud exception because the record provided no basis for it. Finally, the court found that plaintiffs had not violated Federal Rule of Civil Procedure 26 or the electronic-discovery agreement by referring to the document under the circumstances presented.

Judge Susan Van Keulen entered the order without oral argument.