Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 1 of 31
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`United States of America, et al.,
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`v.
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`Google LLC,
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`Plaintiffs,
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`Case No. 1:20-cv-03010-APM
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`HON. AMIT P. MEHTA
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`
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`Defendant.
`GOOGLE LLC’S OPPOSITION TO DOJ PLAINTIFFS’ MOTION
`TO SANCTION GOOGLE AND COMPEL DISCLOSURE
`OF DOCUMENTS UNJUSTIFIABLY CLAIMED BY GOOGLE
`AS ATTORNEY-CLIENT PRIVILEGED
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`Accusing an adversary of engaging in a systematic, bad-faith scheme to falsify and hide
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`documents is a serious matter. A charge of that magnitude should be accompanied by unassailable
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`proof. The DOJ Plaintiffs (“Plaintiffs”) have provided none.1 Their allegations of sanctionable
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`misconduct are baseless. They misread three slides from internal presentations out of the more
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`than 4.5 million documents produced by Google to argue that Google engaged in a nefarious
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`scheme to falsify and hide documents. When read in context, the slides provide legitimate
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`guidance to Google employees about how to communicate with in-house counsel to request legal
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`advice on subjects with obvious legal implications.
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`To be sure, Google employees copy in-house counsel on emails and label those emails
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`“privileged and confidential.” That is understandable: many aspects of Google’s operations have
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`significant legal implications (such as contractual and privacy-related issues) and are subject to
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`1 The present motion was filed by Plaintiffs in United States v. Google LLC, but not the Plaintiffs
`in Colorado v. Google LLC. Accordingly, references to “Plaintiffs” herein refer only to Plaintiffs
`in United States v. Google LLC.
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`1
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 2 of 31
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`government oversight and regulation; Google in-house counsel work hand-in-hand with lay
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`employees every day to navigate complex legal and commercial issues; and distinguishing
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`between privileged legal advice and nonprivileged business advice is “especially difficult.” Am.
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`Nat’l Bank & Tr. Co. v. Equitable Life Ass. Soc’y, 406 F.3d 867, 879 (7th Cir. 2005).
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`Copying in-house counsel on emails or marking emails “privileged” did not spoliate emails
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`or otherwise exempt them from scrutiny during discovery. Google collected responsive
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`documents, reviewed them for privilege, served privilege logs, and has been working in good faith
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`to re-review documents challenged by Plaintiffs—including documents that are the subject of this
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`motion and that Plaintiffs first challenged just weeks ago. In fact, Google already produced the
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`vast majority of emails that seemingly meet Plaintiffs’ “silent-attorney” rubric—more than
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`100,000 in total—including those that Plaintiffs attach as exhibits to their motion. Plaintiffs come
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`nowhere close to proving the bad-faith misconduct that is required to strip a party of its privilege
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`protections as a sanction under the Court’s inherent authority. The Court should deny the motion
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`for sanctions.
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`Plaintiffs’ alternative motion to compel seeks the same relief as their sanctions motion:
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`blanket removal of privilege protection over large swathes of unidentified emails. They ask the
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`Court categorically to compel production of what they call “silent-attorney” emails on the theory
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`that if an attorney did not respond to an email in the same email chain, the email cannot be
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`privileged or work product. Of course, this is wrong and there are many reasons why an attorney
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`might not respond to a privileged or work-product email, which is why privilege must be assessed
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`on a case-by-case basis. Plaintiffs cite no case adopting their “silent-attorney” rule, and the case
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`law does not require an attorney response to render a client’s request for legal advice privileged.
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`Adopting Plaintiffs’ rule would unjustly require production of large quantities of privileged and
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`2
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 3 of 31
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`work-product documents, and would “limit the valuable efforts of corporate counsel to ensure their
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`client’s compliance with the law.” Upjohn Co. v. United States, 449 U.S. 383, 392 (1981). The
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`Court should deny Plaintiffs’ motion to compel.
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`BACKGROUND
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`A.
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`Plaintiffs’ “Communicate-with-Care” Allegations Are Baseless.
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`Plaintiffs’ motion rests on their allegation that Google “systematically trained its
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`employees” to hide documents from discovery by “camoflag[ing] ordinary-course business
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`documents to look like privileged discussions.” Mot. 3. Plaintiffs call this supposed instruction
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`“Communicate with Care.” Mot. 4. Plaintiffs’ allegation lacks any basis in fact and cannot support
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`an award of sanctions.
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`1.
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`What “communicate with care” actually means.
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`Google has, in trainings from time to time, reminded employees to “communicate with
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`care,” but for entirely legitimate reasons. “[C]ommunicate with care” conveys a set of
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`recommendations that encourage employees to think carefully about what they reduce to writing
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`in order to protect commercially sensitive and/or legitimately privileged communications.
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`Plaintiffs’ attempt to transform “communicate with care” into a scheme to thwart government
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`investigations or discovery finds no support in the evidence. To the contrary, as discussed below,
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`the ideas advanced in Google’s “communicate with care” guidance have been endorsed by legal
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`commentators.
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`Google’s documents show that “communicate with care” means to follow best practices
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`for handling confidential, proprietary, and/or privileged information in email correspondence and
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`other internal communications. For example, as part of a quarterly presentation to one business
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`group, Google instructed employees on how to share sensitive, non-public information within their
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`working groups. One slide in the presentation recommended, in relevant part, that employees
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 4 of 31
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`pause before pressing ‘send’ and consider whether they would be comfortable if The New York
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`Times published the contents of their emails.2 Importantly, the presentation educated employees
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`about the limitations of attorney-client privilege; it specifically told employees that marking
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`documents as privileged “does not make it so.” And it reminded employees of the importance of
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`sensible email etiquette (e.g., avoiding exaggerations and legal conclusions) regardless of whether
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`emails and other communications reflect or seek legal guidance.
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`Figure 13
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`Contrary to Plaintiffs’ assertions, such instructions to “communicate with care” do not
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`teach employees to shield their emails from discovery by abusing attorney-client privilege. As set
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`forth in the examples below, Google employees receive industry-standard guidance regarding the
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`scope of attorney-client privilege. Employees are trained, for example, that communications are
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`2 Google Ex. 4 (GOOG-DOJ-16974608), at -616; see also, e.g., Google Ex. 5 (GOOG-DOJ-
`07746117), at -230 (“A good rule of thumb is don’t type anything . . . that you wouldn’t want to
`see quoted on the front page of The Verge.”).
`3 Google Ex. 4 at -616.
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`4
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 5 of 31
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`privileged only to the extent they reflect confidential information between a lawyer and a client
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`for the purpose of receiving or providing legal advice:
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`Figure 24
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`Google also provides its employees with tips for protecting legitimately privileged
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`communications from disclosure, while cautioning that “just adding a lawyer to an email/document
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`doesn’t guarantee that it will be protected by the privilege”:
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`4 Google Ex. 6 (GOOG-DOJ-21004668), at -672.
`5
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 6 of 31
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`Figure 35
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`That same guidance told employees that “magic words” do not “make a document privileged,” but
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`added that “it’s helpful to identify documents that might contain privileged material” (emphasis
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`added). Google advised employees to “[l]imit the distribution of privileged emails/documents to
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`a need-to-know audience,” and told them to “assume that everything you write, send or share may
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`be subject to public scrutiny.”
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`Plaintiffs cite no evidence that Google intentionally encouraged its employees to make
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`pretextual requests for legal advice in order to prevent disclosure of information during
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`discovery. To the contrary, one Google presentation explained that, with respect to privilege, “you
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`can’t fake it”:
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`5 Google Ex. 7 (GOOG-DOJ-31153588), at -592 (emphasis added).
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`6
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 7 of 31
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`Figure 46
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`In depositions, employees confirmed that “communicate with care” means to “be
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`thoughtful about communication.” Google Ex. 9 (Richardson), at 262; see also Google Ex. 10
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`(Juda), at 150-51 (“In my mind, it’s intended to reflect the act of communicating in the various
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`ways that one can communicate, oral, verbal, et cetera, that match the intentions of the – the person
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`communicating and – yeah, ideally, with like a tone and spirit that is also, you know, appropriate
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`for the intention of the person.”). No witness identified “communicate with care” as a strategy for
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`falsifying and hiding documents.
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`Google’s “communicate with care” guidance follows best practices approved by credible
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`stakeholders in the legal industry. For example, a recent article by contributors to the American
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`Bar Association embraces much of the guidance that Google employees received. See Doug
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`6 Google Ex. 6 at -674 (emphasis added); see also, e.g., Google Ex. 8 (GOOG-DOJ-27161395), at
`-401 (“So if a lawyer is not included in a document / email or a lawyer is included but you are not
`asking for legal advice, then privilege does not apply even if you mark the document / email.”);
`id. (“Note that use of ‘ACP’ on a document is NOT definitive as the legal discovery team reviews
`all to ensure actual legal advice is being requested / provided.”).
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 8 of 31
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`Gallagher & Manasi Raveendran, Attorney-Client Privilege for In-House Counsel, 10 No. 2
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`Landslide, Nov.-Dec. 2017. Recognizing that “attorney-client privilege for in-house counsel is
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`complex and can be hard to navigate,” the article encourages in-house counsel to train employees
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`to: “avoid[] making conclusory statements of fact or drawing legal conclusions; “[a]void
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`circulating privileged communications too broadly”; and “[a]sk . . . how the communication would
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`be read or interpreted by unintended recipients, such as an opposing party, a court, or the media.”
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`Id.; see also, e.g., Jackie Unger, Maintaining the Privilege: A Refresher on Important Aspects of
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`the Attorney-Client Privilege, Business Law Today (ABA Oct. 2013) (recommending, among
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`other steps, “[c]learly labeling written communications seeking or rendering legal advice”).
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`Similar tips appear in a treatise published by the American Bar Association that is widely
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`consulted by attorneys around the country, which advises: “When documents are conveyed to an
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`attorney for the purpose of soliciting legal advice, an attorney would be well advised to recommend
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`to the client that the fact be so stated on the face of the document,” and “Care should be taken that
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`distributions of e-mails be made only to persons within a ‘need to know’ group.” 1 Edna S.
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`Epstein, Attorney-Client Privilege & the Work-Product Doctrine §§ 1.III.E4.B, 1.III.E4.A (6th ed.
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`2017).
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`2.
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`Plaintiffs’ mischaracterization of “communicate with care.”
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`Plaintiffs present none of the just-discussed evidence to the Court. Instead, ignoring all
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`this evidence, Plaintiffs incorrectly infer a “systematic[]” “communicate with care” practice from
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`one slide of one presentation using that phrase (Plaintiffs’ Exhibit 1). See Mot. 3-4; Pls.’ Ex. 1.
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`And they ignore the context of that single slide. Plaintiffs’ Exhibit 1 is a 2015 orientation
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`presentation for new Google employees in its Apps division. The at-issue slide appears at page 35
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`of 40 of the presentation. Critically, it appears in a section of the presentation related to “Privacy
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`and User Trust” that was developed by Google’s Security, Trust, and Privacy team. Pls.’ Ex. 1
`8
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 9 of 31
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`(GOOG-DOJ-06890329), at -359, -363; Frey Decl. (Google Ex. 2) ¶¶ 4-7. Protection of user data
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`is an area of Google’s business that involves significant and frequently evolving government
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`regulation, and Google’s in-house counsel work closely with the Security, Trust, and Privacy team
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`to resolve privacy-related questions within Google. Frey Decl. ¶ 5. The slide immediately before
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`slide 35 tells new employees what to do if they “see a problem” related to privacy: they should
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` Pls.’ Ex. 1 at -362. Slide 35
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`then provides legitimate guidance to employees on how to protect their communications to in-
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`house counsel requesting privacy-related legal advice: (1) direct the email to the lawyer, (2) mark
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`the email “Attorney-Client Privileged,” and (3) ask the lawyer a question. Id. at -363. By
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`encouraging Google employees to “communicate with care,” the Security, Trust, and Privacy team
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`responsible for these slides simply meant that Google employees entrusted with highly sensitive
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`information subject to evolving legal and regulatory requirements should be thoughtful about what
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`is put in writing and request advice from Google’s internal experts on privacy and in-house counsel
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`where appropriate. Frey Decl. ¶¶ 8-11.
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`Nothing about this slide suggests that employees should ask a lawyer a question to hide
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`documents, and Plaintiffs present no evidence that any Google employee understood it that way.
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`Plaintiffs have not even asked any Google employee about this slide in any deposition, likely
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`because the subject matter of the slide has little relevance to this case.
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`Plaintiffs also cite a slide appearing in two versions of a presentation entitled “Android
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`Mobile Search & Assistant Revenue Share Agreement Training.” Pls.’ Mot. 4-7; Pls.’ Exs. 3, 5.7
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`Again, Plaintiffs ignore the context of this slide. Both presentations reflect guidance provided to
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`a limited group of Android team members after Google modified certain contractual terms of its
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`7 Plaintiffs’ Exhibit 30 is a later-in-time version of this presentation.
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 10 of 31
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`template Revenue Share Agreements (RSAs) and Mobile App Distribution Agreements
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`(MADAs). Veer Decl. (Google Ex. 3) ¶¶ 7-8, 13-14. Google’s in-house counsel participated in
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`the development of and drafted the modified terms for Google’s RSA and MADA contracts. Veer
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`Decl. ¶ 6. The employees attending these presentations were responsible for negotiating the
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`modified terms with Google’s commercial partners, and the presentations were intended to educate
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`the employees about the modified terms. Veer Decl. ¶¶ 7-8, 13. As the 2019 presentation (Exhibit
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`5) makes clear, following those negotiations, Google’s in-house “Legal” team would need to
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`“finalize” the revised agreements. Pls.’ Ex. 5 at -142; see Veer Decl. ¶ 6.
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`The slide appropriately reminds employees to direct questions about the revised RSA and
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`MADA contractual terms to the responsible in-house counsel and to keep counsel informed during
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`the negotiations. Pls.’ Ex. 3 at -666 (“any written communication regarding Rev Share and MADA
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`should include Legal” (emphasis omitted)); Pls.’ Ex. 5 at -046 (same); see Veer Decl. ¶¶ 10-12,
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`15. Since in-house counsel would have to approve the final negotiated agreements, it made sense
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`to involve them in relevant internal communications about the agreements. See BankDirect Cap.
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`Fin. v. Cap. Premium Fin., 326 F.R.D. 176, 181 (N.D. Ill. 2018) (“Invariably, the contracts
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`underlying complex and intricate commercial transactions have commercial and legal aspects to
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`them – and the two, as we have noted, are often difficult, if not impossible, to separate.”).
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`The slide also provided the same legitimate advice for how to direct requests for legal advice to
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`in-house counsel: “request guidance” and “mark content as ‘Confidential – Attorney Client
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`Privileged.’” Pls.’ Ex. 3 at -666; Pls.’ Ex. 5 at -046. The slide does not instruct employees to
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`make pretextual requests for legal advice to hide documents from discovery.
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`In depositions, Google employees who attended one or more of these presentations
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`confirmed their understanding that it was important to communicate with in-house counsel about
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 11 of 31
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`the RSA and MADA contracts because of those contracts’ legal nature. See Google Ex. 11
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`(Rosenberg), at 216-17 (“[I]t’s often the case that a discussion or clarification regarding a
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`particular term might be one that is best answered by an attorney. So as a matter of practice,
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`including an attorney in the communications could be helpful in helping the individual seeking an
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`answer get the answer.”); Google Ex. 12 (Kolotorous), at 239 (“[A]nything regarding rev share
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`contracts or MADA contracts, in those instances, yes, I would make sure that an attorney was on
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`the note given it was a discussion orbiting around contracts in particular.”). Another attendee
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`disclaimed copying counsel on all emails “regarding revenue share or MADA.” Google Ex. 13
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`(Schindler), at 305 (“Is it your general practice to include Legal -- Legal on any written
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`communication regarding revenue share and MADA? A. No. My general -- my general practice
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`is to include Legal and ask for attorney-client privilege if I need counsel and advice from Legal.”).
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`No employee testified that they understood this slide to instruct employees to make pretextual
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`requests for legal advice.
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`From these slides, Plaintiffs inappropriately allege that Google created a “three-step
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`formula” to hide documents: (1) marking emails “privileged and confidential,” (2) directing
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`emails to lawyers, and (3) asking the lawyer a question. Mot. 7-8. Responsive documents fitting
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`those criteria, however, were not categorically withheld or otherwise shielded from production.
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`Google collected the documents and independently reviewed them for privilege. “Privileged and
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`confidential” markings appropriately flagged the documents as ones that Google should review in
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`its privilege review but did not control the privilege determination. As discussed in more detail
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`below, Google produced many of these documents to Plaintiffs.
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`Plaintiffs’ motion proves the point: Plaintiffs attach to their motion numerous examples of
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`emails supposedly reflecting these three steps that Google has produced in this case. Of the
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`11
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 12 of 31
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`produced emails that Plaintiffs attach to their motion, 19 were marked by employees with some
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`version of “privileged and confidential.” See Pls.’ Exs. 6-7, 9-16, 18, 20-23, 27-29, 33. Thirteen
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`emails contain “please advise” or similar language. See Pls.’ Exs. 6-7, 9-16, 22, 27-28. Plaintiffs
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`have these emails because Google produced them, some in its initial production and some as a
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`result of its re-review, discussed in more detail below.
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`None of the emails that Plaintiffs attach to their motion evidences a bad-faith scheme to
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`hide documents. Most involve Google’s contractual negotiations with business partners, a subject
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`on which employees would appropriately need and desire legal advice from in-house counsel for
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`the reasons already explained above. See Pls.’ Exs. 6-7, 9-11, 13-17, 22-23, 25, 26, 27, 28-29, 31-
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`33. Others likewise involve issues with obvious legal implications. See, e.g., Pls.’ Ex. 12
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`(company’s handling of
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`implications of
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`); Pls.’ Ex. 20 (the
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`). Some reflect
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`common misperceptions of attorney-client privilege. For example, some employees appear to use
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`the word “privileged” to mean “confidential.” See, e.g., Pls.’ Exs. 23, 24. Others mistakenly think
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`that copying attorneys on a document automatically renders the document privileged. See, e.g.,
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`Pls.’ Exs. 17-20. These are common misperceptions among laypeople, as the Court recognized at
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`the January 2022 status conference. 1/7/22 Hr’g Tr. at 16 (it is not “unusual in corporate America
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`for any communication with in-house counsel to simply be reflexively labeled as attorney-client
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`privilege communication”). The emails do not suggest, let alone prove, that employees falsified
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`their email correspondence in order to hide them from investigators or litigants.
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`B.
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`Google’s Document Production and Privilege Review Further Demonstrate
`That Plaintiffs Have Not Been Denied Access to Evidence.
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`Even if individual employees mislabeled some documents as privileged, those labels did
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`not operate to hide the documents from Plaintiffs. Google’s document collection and production
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 13 of 31
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`efforts have resulted in production of more than 100,000 emails that are the subject of Plaintiffs’
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`motion. Indeed, as discussed in more detail below, Google produced the vast majority of these
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`emails in its initial productions, before any challenges by Plaintiffs or re-review.
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`Plaintiffs requested a sprawling set of documents in their investigation and litigation
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`covering large swathes of Google’s operations. Google’s resulting document collection, review,
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`and production undertakings have been immense. Google collected and produced documents,
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`including emails, from more than 120 custodians. Tennis Decl. (Google Ex. 1) ¶ 4. The produced
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`documents span at least 15 years. Tennis Decl. ¶ 4. To date, Google has produced more than 4.5
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`million documents to Plaintiffs. Tennis Decl. ¶ 4.
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` Plaintiffs’ allegations and document requests focus on aspects of Google’s operations that
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`involve significant oversight by Google’s in-house counsel, including Google’s contractual
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`relationships with third parties. Google collected and produced documents created during time
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`periods where Google has been subject to significant regulatory scrutiny, including documents
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`created during DOJ’s investigation that led to this litigation and during the litigation itself. Tennis
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`Decl. ¶ 7. Google’s in-house legal department employs a large number of attorneys, and attorneys
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`are embedded in Google’s product teams and communicate daily with Google non-attorneys. This
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`is hardly surprising: “The ‘vast and complicated array of regulatory legislation’ requires
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`corporations to ‘constantly go to lawyers to find out how to obey the law . . . .’” FTC v. Boehringer
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`Ingelheim Pharms., 892 F.3d 1264, 1269 (D.C. Cir. 2018) (quoting Upjohn Co. v. United States,
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`449 U.S. 383, 392 (1981)). Google’s document collection in this case swept in a tremendous
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`number of communications with attorneys who have worked for Google over the more than
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`decade-long period covered by Plaintiffs’ documents requests. Unsurprisingly, a document
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 14 of 31
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`production of this magnitude triggered a large and complex privilege review—a review that
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`resulted in a privilege log with more than 1000 in-house attorneys listed. Tennis Decl. ¶ 9.
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`Distinguishing between in-house counsel’s legal advice and business advice is an
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`“especially difficult” “area of privilege law,” and reasonable lawyers can have “good-faith
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`difference(s) of opinion” over privilege calls. Am. Nat’l Bank & Tr. Co. v. Equitable Life Ass.
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`Soc’y, 406 F.3d 867, 878-79 (7th Cir. 2005); see also Boehringer Ingelheim, 892 F.3d at 1267
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`(“The application of the attorney-client privilege can become more complicated when a
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`communication has multiple purposes—in particular, a legal purpose and a business purpose.”).
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`Google’s privilege review required it to conduct this analysis across hundreds of thousands of
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`documents.
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`Google devoted substantial resources to this endeavor. A large team of trained attorneys—
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`often exceeding more than one hundred attorneys at a given time—reviewed documents for
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`privilege during the investigation and litigation stages. Tennis Decl. ¶ 5. Google trained reviewers
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`not to base privilege determinations on the mere presence of attorneys or on “privileged and
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`confidential” markings. Tennis Decl. ¶ 6. To date, outside counsel and contract attorneys under
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`outside counsel’s supervision have devoted more than 21,000 hours to privilege-related work in
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`this case. Tennis Decl. ¶ 11.
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`Google produced privilege logs on a rolling basis, first during the investigation and then
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`later in litigation. Google produced its first investigation-stage log in September 2020. Tennis
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`Decl. ¶ 8. Google produced its first litigation-stage log in April 2021. Tennis Decl. ¶ 8. Plaintiffs
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`first raised questions about Google’s privilege designations in June 2021. As relevant here, on
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`June 4, 2021, Plaintiffs asked Google to re-review an identified set of 81,122 logged
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`communications in which an attorney appeared only in the CC line. Pls.’ Ex. 35 at 9-11. Plaintiffs
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 15 of 31
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`reiterated that request with respect to additional volumes of Google’s log in July 2021. Google
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`Ex. 14 (July 29, 2021 letter).
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`After meet-and-confer discussions, Google agreed in early August 2021 to re-review the
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`subset of those emails in which the attorney remained on the CC line throughout the email chain.
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`Google Ex. 15 (Aug. 4, 2021 letter). Google offered to prioritize the review for document
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`custodians noticed for deposition if necessary. Id. At that time, Plaintiffs did not raise any
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`objection to logged emails with attorneys on the “to” line to which the attorney did not respond.
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`Google completed the first wave of its re-review and produced documents resulting from
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`the re-review in September 2021. Tennis Decl. ¶ 13. On November 15, 2021, Plaintiffs asked
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`Google to re-review an identified set of 23,861 additional logged communications, from more
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`recently produced volumes of Google’s log, in which an attorney appeared only in the CC line.
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`Pls.’ Ex. 36 at 6-8. Again, Plaintiffs did not raise any objections to emails in which an attorney
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`appears on the “to” line to which the attorney did not respond. One week later, Google again
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`agreed to re-review the subset of these communications where the attorney remained in the CC
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`line throughout the email chain. Google Ex. 16 (Nov. 22, 2021 letter). Google completed that re-
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`review and produced the resulting documents by mid-January 2022. Tennis Decl. ¶ 18.
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`On January 25, 2022—nearly half a year after Google first agreed to re-review the subset
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`of emails where an attorney remains on the CC line throughout an email chain—Plaintiffs
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`demanded that Google re-review all previously identified emails with an attorney on the CC line,
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`whether or not the attorney responded to the email. Pls.’ Ex. 37 at 1-2. One month later, on
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`February 28, Plaintiffs changed their demand. In a letter, Plaintiffs insisted that Google produce
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`on a blanket basis (1) all emails copied to attorneys to which the attorney did not respond, (2) all
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`emails with an attorney in the “to” line among multiple non-attorney recipients to which the
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`15
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 16 of 31
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`attorney did not respond, and (3) emails where an attorney is included but later removed from the
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`chain without responding. Google Ex. 17 (Feb. 28, 2022 letter). Plaintiffs demanded production
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`of these categories of documents, unredacted, irrespective of whether the documents are
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`privileged. Notably, Google had already reviewed many thousands of emails in categories (1) and
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`(3) as part of its re-review process and determined them to be privileged. Plaintiffs had never
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`before disputed category (2), involving attorneys in the “to” line. Plaintiffs did not identify the
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`specific at-issue documents by Bates number (providing only a categorical description). Plaintiffs
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`filed their sanctions motion and motion to compel a mere 8 days later.
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`Google estimates
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`that Plaintiffs’ motion may
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`implicate approximately 140,000
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`documents—which include documents previously reviewed and produced in full, as well as
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`documents withheld in full or redacted as privileged. Tennis Decl. ¶ 22. As the chart following
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`this paragraph shows, by March 1, 2022, Google had already produced in full more than 111,000
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`of these documents, with another nearly 10,000 documents produced in redacted form. Tennis
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`Decl. ¶ 22. Notably, Google produced the vast majority of these documents as part of its regular
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`periodic productions, before any privilege challenges from Plaintiffs. Tennis Decl. ¶ 22. As of
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`March 1, 2022, Google was withholding in full only 18,000 or so such emails—less than 13 percent
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`of the total.8 Tennis Decl. ¶ 22.
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`8 Plaintiffs claim in a footnote that “Google has fully withheld over 80,000 documents where an
`attorney is merely carbon-copied on an email between non-attorneys.” Mot. 17 n.35. They do not
`explain how they calculated this figure, but this figure apparently includes emails where the
`attorney responds and thus do not qualify as a “silent-attorney” emails under Plaintiffs’ definition.
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`16
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 17 of 31
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`Figure 5
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`See Tennis Decl. ¶ 22. Notably, Plaintiffs concede in their motion that Google has produced more
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`than 9,000 emails involving phrases such as “please advise” and just 5 attorney names. Mot. 11
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`n.23.
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`Following Plaintiffs’ February 28 letter, and before the filing of Plaintiffs’ motion, Google
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`promptly began re-reviewing documents on its log that it believes fall into the categories identified
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`in the letter. Tennis Decl. ¶ 19. (Plaintiffs have not identified the set of at-issue documents, and
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`Plaintiffs’ definition of this category of documents shifts across their motion. See infra p. 27.)
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`Google has already re-reviewed approximately two-thirds of those documents and anticipates
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`producing documents resulting from that re-review by March 25, 2022. Tennis Decl. ¶ 20. Google
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`estimates that it will complete the re-review by April 1, 2022. Tennis Decl. ¶ 20. Throughout the
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`re-review process, Google prioritized reassessing privilege determinations involving documents
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`from custodians noticed for upcoming depositions, and it produced documents resulting from the
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`re-review on a rolling basis to Plaintiffs so that they were available in advance of a custodian’s
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`17
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`Case 1:20-cv-03010-APM Document 328 Filed 03/24/22 Page 18 of 31
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`deposition. Tennis Decl. ¶ 15. Google has continued that practice during the current re-review.
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`Tennis Decl. ¶ 21.
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`ARGUMENT
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`I.
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`The Court Should Deny Plaintiffs’ Baseless Request for Sanctions.
`A.
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`An Award of Sanctions Under a Court’s Inherent Authority Requires Bad-
`Faith Misconduct.
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`Although Plaintiffs request sanctions, they do not invoke the ordinary sanctions remedy of
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`Rule 37(b), nor could they: Rule 37(b) sanctions require a “production order,” Shepherd v. ABC,
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`62 F.3d 1469, 1475 (D.C. Cir. 1995) (citation omitted), and Plaintiffs never moved for such an
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`order. Short-circuiting the ordinary discovery process—which ensures that sanctions are imposed
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`only after a court has intervened on a discovery issue—Plaintiffs urge the Court to impose
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`sanctions under its inherent authority.
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`When “a party’s misconduct has tainted the evidentiary resolution of [an] issue,” a court
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`may use its inherent authority to impose sanctions related to that issue, id. at 1478, if “the Rules
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`are [not] up to the