A Special Master has ordered Google to turn over supposedly “privileged” documents at issue in an NLRB dispute with former employees. Whether it is upheld in this high-profile litigation or not, the ruling points out some significant misconceptions about privilege (and work product) held by many clients and some attorneys.

Anti-union campaign advice does not equal legal advice

One key aspect of the ruling was its conclusion that the attorney-client privilege does not typically protect unionization campaign communications because campaign messaging advice is not legal advice. Many of the documents reviewed were connected to Google’s work with a consultant hired to help craft anti-union campaign messaging. The Special Master found that Google did not establish that such materials were communications in connection with obtaining legal advice, as required for the privilege to apply.

Third Party Communications are not confidential

Generally, communications made in the presence of a third party lack protection unless the third party is an agent of the attorney or client. The Special Master also found that the communications were not confidential communications between Google and its legal counsel—rather, by involving the consultant, they fell outside the attorney-client relationship. Moreover, many of the anti-union training materials that the consultant provided were broadly disseminated—which waives the privilege.

“Washing” a communication through counsel does not create privilege

In an attempt to cloak the unionization campaign communications with privilege, Google instructed the consultant to send materials to Google’s outside counsel, so that outside counsel could then send them to Google. The Special Master held that “This effort at creating the impression of legal advice is not only disingenuous, but fails under established precedent holding that a party cannot cloak otherwise unprivileged material in attorney-client privilege simply by sharing it with legal counsel.” The Special Master deemed this an “attempt to conjure a privilege by detouring [the consultant’s] material through outside legal counsel.”

The Special Master was also unpersuaded by other arguments to shield documents, such as adding “privileged” labels on documents or language in the consultant’s contract stating that their communications were intended to be covered by privilege and work product.

Pointers

Privilege is construed differently in different jurisdictions, narrowly construed in most, and only applies to communications made for the purpose of obtaining legal advice. Privilege and work product disputes are always fact intensive, and no client or attorney should assume either will apply to just any communication. Here are a few important points to remember:

  • Simply copying an attorney (in-house or outside) does not make a communication privileged.
  • Merely marking “Privileged” on the face of a document does not make it so.
  • The privilege is for legal advice, not business advice (including campaign messaging). (For example, the Minnesota Supreme Court recently upheld rejecting privilege for a report prepared by counsel, where its predominant purpose was business advice, not legal advice.)
  • As we’ve cautioned before, routinely marking “CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE” on communications may undermine the legitimacy of a privilege assertion.
  • Even if advice is deemed legal advice, if it is broadly disseminated outside the circle of privileged parties, it will likely lose its privileged character.