The US federal judge hearing the government's antitrust case against Alphabet's Google said on Friday he was not convinced that he had the authority to sanction the company for overzealous use of attorney-client privilege if it occurred before the Justice Department's lawsuit was filed.
The department had asked Judge Amit Mehta in a court filing to sanction Google, saying the company's "Communicate with Care" programme, which asked employees to add a lawyer to many emails, was sometimes a "game" to shield communications that did not genuinely fall under attorney-client privilege. Google responded that it did nothing wrong.
Mehta, of the US District Court for the District of Columbia, said that there were an "eye-popping" 140,000 documents originally slated as falling under attorney-client privilege but that 98,000 or those were quickly given to the government. But he also said that he was "not sure a federal court has the authority" to sanction that practice since it occurred before the government filed its lawsuit.
John Schmidtlein, Google's attorney in the case, said that 21,000 of the emails were still at issue.
Kenneth Dintzer, the Justice Department's lawyer, asked that Google be sanctioned for the practice and be required to turn over the 21,000 emails. He argued that the practice cost the government valuable time in putting together its case.
The Justice Department filed the lawsuit against Google in 2020, accusing it of violating antitrust law in its handling of its search business. Trial was set for September 2023.
© Thomson Reuters 2022
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