Weekly IP Buzz for the Week Ending April 29, 2022
In this week's post, we see that the U.S. Department of Justice claims misuse of attorney-client privilege by Google in drafting internal communications in a manner that shields them from production.
U.S. Department of Justice Claims Google Misused Attorney-Client Privilege
Since 2020, Google has been entangled in a multi-state (Texas included) antitrust lawsuit over its online advertising practices. At the heart of the lawsuit is Google’s alleged monopoly power over setting its advertising prices. Because Google controls a whopping 92% of search engine market share, it has had considerable control of pricing when it comes to online advertising. But the U.S. Department of Justice (“DOJ”)’s most recent issue related to the lawsuit with Google is over Google’s alleged misuse of attorney-client privilege.
While preparing its case against Google, the DOJ noticed that Google had a peculiar in-house procedure called “Communicate with Care.” The DOJ claims that, since 2015, Google has required its employees to mark any written documentation regarding its ad revenue-sharing and mobile application distribution agreements as privileged. Typically, communication between a client and their legal counsel is considered to be privileged but is usually produced in anticipation of litigation only. As such, the amount of communication and documentation marked under attorney-client privilege is small percentage of the documents produced by a company in its normal course of business.
Read more here.
Click to read the previous Weekly IP Buzz on Thriving Attorney: Joint defense agreements in patent cases. Corporate transparency and start-ups. WDTX new standing orders for patent cases.
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In addition to publishing Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer. For more on the latest developments in IP law, see the blogs Ideate and IP Questions Answered.