I mean, it seems so simple, and yet so genius. But also so very unethical:
“In a program called ‘Communicate with Care,’ Google trains and directs employees to add an attorney, a privileged label, and a generic ‘request’ for counsel’s advice to shield sensitive business communications, regardless of whether any legal advice is actually needed or sought. Often, knowing the game, the in-house counsel included in these Communicate-with-Care emails does not respond at all,” the DOJ told the court. The fact that attorneys often don’t reply to the emails “underscor[es] that these communications are not genuine requests for legal advice but rather an effort to hide potential evidence,” the DOJ said.”
Before I make any further comment on this, let me point out that this is a claim, it hasn’t been proven and I have no personal knowledge about whether this is exactly what happened. It’s possible that they weren’t trying to misuse privilege to avoid disclosing information during litigation, and it’s possible that they were. What it does show us is that we can’t assume we know how everyone works.
Let this serve as another reminder that sometimes you have to change things up in eDiscovery because people will adjust to the default behaviors. Simply making every email in which an attorney is addressed as privileged makes it more likely that people will abuse that system.
People do not live in a vacuum, they will react and adjust to the things we put in front of them in eDiscovery, security, etc. It pays to keep an eye on what they are doing and how we might need to adjust too. People will find ways around our policies and practices if it helps them. We shouldn’t assume that everyone is using our playbook.