Google Trains Its Employees To Shield Emails And Other Documents From Review

B. Google Trains Its Employees To Shield Emails And Other Documents From Review And Production In Investigations And Litigation

1. Google Trains Employees To Always Copy An Attorney When Discussing The MADA Or The RSA, And Google Employees Follow That Advice

1222. Google has long trained its employees to include attorneys on “any written communication regarding RevShare and MADA.” Tr. 960:11–961:9 (Kolotouros (Google)) (discussing UPX0320)); UPX0320 at -605, -617, -681, -702 (red slides instructing to copy attorneys on “any written communication regarding RevShare and MADA”); UPX0697 at -664– 66 (same). Google does not, however, require employees to include attorneys for in-person meetings or oral conversations regarding Revshare and MADA. Tr. 961:10–19 (Kolotouros (Google)) (discussing UPX0320); UPX0320 at -605, -617, -681, -702.

1223. Google employees follow their training and include attorneys on “any written communication regarding revshare and MADA,” even when not requesting legal advice. Tr. 956:24–957:8, 957:23–958:3, 958:9–11, 958:16–959:6, 961:10–19, 963:8–19 (Kolotouros (Google)) (copied attorneys on all written communications regarding revshare, MADA, and contractual terms; as a “loyal” Google employee, he worked “to protect” the company in litigation); Tr. 9568:11–20 (Rosenberg (Google)) (discussing UPX0706); UPX0706 at -232 (“Make sure to ma[rk] each slide [in “MADA/RSA deck”] as Privileged and have Kate on the distribution for her review”); Tr. 2866:9–2867:1 (Kartasheva (Google)) (discussing UPX0150) (marking email attorney client privileged because it “discuss[ed] a revenue share proposal”); UPX0150 at -900 (email estimating the Android search traffic protected by MADA and RSA); Tr. 4937:10–4938:14 (Braddi (Google)) (discussing UPX1110 and admitting that the question she asked counsel in an email was to “mark the document” as privileged, with document not reflecting a request for legal advice); UPX1110 at -191 (requesting that a slide deck analyzing Google’s contribution to Apple’s profits be marked privileged); Tr. 18:25–19:13 (Sept. 19, 2023 sealed PM session) (Yoo (Google)) (discussing UPX1107); UPX1107 (including attorney on raw data estimating revenues by search access point, with no specific request for legal advice); UPX0713 at -366 (copying attorneys because a potential issue “will impact the messages Samsung conveys to the DOJ [about] the impact of MADA on their devices, business, and users”); UPX0167 at -410 (adding attorney when discussing Samsung MADA, but not requesting legal advice); UPX1108 at -811 (same, when discussing Samsung RSA); UPX0168 at -883 (same, when discussing Samsung MADA and RSA); UPX0660 at -369 (same, when discussing revenue through Samsung access points “we get via MADA”); UPX0316 at -906 (same when discussing MADA, Google Play, and widget placement); UPX0463 (same, when discussing “objectives for Search-related efforts”); UPX0168 at -883 (same, when discussing MADA and RSA).

1224. Google’s attempts to shield discovery include the company’s CEO. Mr. Pichai testified that he sometimes copied Chief Legal Officer Kent Walker on emails and asked for legal advice when he was not “really seeking legal advice, but [] seeking confidentiality for the document.” Tr. 7728:1–12 (Pichai (Google)); id.7726:3–16 (“There have been occasions where I’ve just marked [emails] privileged to indicate it’s confidential.”); UPX0705 at -810 (heavily redacted email chain about Apple ISA on which Mr. Walker is copied but never responds).

2. Google Trains Its Employees To Avoid Topics And Words Relevant To Antitrust Law, And Google Employees Follow That Training

1225. Google has cautioned its employees since at least 2003 to be careful about what they put in writing because it might be discoverable, and employees heed that caution. Tr. 147:12–149:9 (Varian (Google)) (discussing UPX0151); UPX0151 at -162 (Dr. Varian’s 2003 memorandum, “[W]e also have to be sensitive about antitrust considerations. Look at it this way: we are currently a dominant player in an industry and we are trying to discourage entry by a potential competitor. . . . We should be careful about what we say in both public and private. ‘Cutting off the air supply,’ and similar phrases should be avoided.”); UPX1101 at -619 (“Google continues to be in the midst of several legal and regulatory matters, including government review of our deal with Yahoo . . . anything you write can become subject to review in legal discovery, misconstrued, or taken out of context, and may be used against you or us in ways you wouldn’t expect.”); UPX1041 at -426 (“Send me in a privileged email what you think we should do pls”); UPX1097 at -518 (“we should chat live so you can get the history; best to not put in email”); UPX0712 at -514 (“can you pl make the current plan doc also privileged, so we can comment on it?”); UPX0696 at -422 (“[W]e wish NO slides on the terms [of the Apple ISA] as this is all then discoverable. . . contract info on slides is a very bad idea.”); UPX0701 at -374 (“Can we put together a list of words that have specific legal ramifications and create a popup before an email is sent saying something like . . . Are you sure you don’t want to change your wording or CC a lawyer before you send this?”).

1226. Google trains its employees to avoid using certain words and phrases, both in public and in private. Employees are trained to not just avoid written communications using those words and phrases, but to not even discuss certain topics, such as scale. Tr. 147:12–149:9 (Varian (Google)) (discussing UPX0151 at -162); UPX0151 at -162 (“We should be careful about what we say in both public and private. ‘Cutting off their air supply’ and similar phrases should be avoided.”); Tr. 1796:17–1799:16 (Lehman (Google)) (discussing UPX0204) (“everybody knows Google uses clicks in ranking. . . . They say why are you trying to obscure this issue when it’s totally not obscure, everyone knows it.”); UPX0204 at -208 (“Do not discuss the use of clicks in search . . . Google has a public position. It is debatable.”); UPX1066 at -880 (training to “avoid writing references to ‘markets,’ ‘market shares,’ or ‘dominance’”; “avoid discussions of ‘scale’ and ‘network effects’”); UPX2091 at -584 (“We are not out to ‘crush,’ ‘kill,’ ‘hurt,’ ‘block’ or do anything else that might be perceived as evil or unfair.”); UPX0701 at -374 (“I just went through Communicating with Care training, and there are a lot of words I’ve written in emails without thinking much about it (like ‘leverage’ and ‘market share’).”); UPX0703 at -465 (“Please avoid using anticompetitive language in your OKRs. We are currently under a DOJ inquiry on antitrust around our Yahoo deal . . . avoid: market or market share dominance, market power . . . leverage” and “consider substituting . . . Most popular, most used”); UPX0277 at -556–57 (“Be careful in discussing search . . . Emails you send to people in Search are likely to be retained indefinitely in connection with multiple, ongoing lawsuits.”); id. at -559–60 (“Be careful in discussing search . . . We never know when the next regulatory action or subpoena will hit”); id. at -564 (“Sensitive topics, [stuff I won’t even list here], Do not discuss the use of clicks in search . . . . Google has a public position. It is debatable. But please don’t craft your own.”).

For years, Google’s executives have also used the term “search share” or “query share” rather than “market share” to describe the monthly measure of Google’s share of the search market; Google executives took this approach because of concerns about antitrust liability. Tr. 216:3–7 (Varian (Google)); UPX0499 at -297 (“let’s make sure that we are consistent in calling this ‘query share’ rather than ‘market share’”); UPX0702 at -052 (“Don’t say ‘market share’, since that pre-supposes that the ‘market’ is search-engine advertising, which is bad from an antitrust point of view.

It should be OK to say ‘estimated share of US queries’ or something like that”); UPX0699 at -802 (reminding others to avoid the use of “any antitrust terms—such as ‘market’ and ‘market share’ or ‘leverage’”); UPX0929 at -480 (“Be very careful in your use of language . . . . Market is an unhelpful word from an antitrust perspective”).

1227. Google employees caution one another regarding the use of certain “trigger” words, or copy an attorney when certain words are used. Tr. 211:23–212:12 (Varian (Google)) (referring to UPX0499); Tr. 9575:14–9581:23 (Rosenberg (Google)) (discussing UPX0997 at -065 and UPX2091 at -584); UPX0151 at -162; UPX0499 at -297 (Dr. Varian cautioning to use “‘query share’ rather than ‘market share’”; Ms. Chu responding “absolutely, I’m aware of not using the word ‘market’, and always use the words PV or search share in all the bi-weekly updates I send to Marissa [Mayer]– the one big thing I remember from all that Legal training. [smiley face]”); UPX0997 at -065 (“(Adding Tristan for legal advice, since I’m about to use some trigger words) Sadly, I think this is all about leverage and money.”); UPX2091 at -584 (“we don’t ‘leverage’ markets, products, or resources. Using the word ‘leverage’ . . . implies exploitation and an absence of consumer choice . . . .”); UPX0699 at -802 (responding to chain about “market share,” discussing “antitrust terms” to avoid and the “Five Rules of Thumb” for written communications, and writing “moral is, don’t use the term ‘m.... s....’. [smiley face]”); UPX0702 at -052 (“Don’t say ‘market share’, since that pre-supposes that the ‘market’ is search-engine advertising, which is bad from an antitrust point of view.”).

3. Google’s Attempts To Shield Documents From Review Are Part Of Its Communicate With Care Program

1228. Google’s attempts to shield communications by always copying attorneys on emails regarding MADA and RSA, and avoiding the use of certain antitrust-adjacent words, are part of its “Communicate with Care” training. Tr. 961:20–24 (Kolotouros (Google)) (Google’s Communicate with Care training is “offered to Google employees generally”); Tr. 149:8–9 (Varian (Google)) (agreeing he warned people at Google to communicate carefully); UPX0701 at -374 (“I just went through Communicating with Care training, and there are a lot of words I’ve written in emails without thinking much about it (like ‘leverage’ and ‘market share’).”); UPX1099 at -146 (advising Samsung employees in a Google Chat that history was now “on” and to “Communicate with Care given this”); Memorandum in Support of Plaintiffs’ Motion to Sanction Google and Compel Disclosure of Documents Unjustifiably Claimed by Google as Attorney-Client Privileged, ECF No. 317–1 at 3–16 (explaining Communicate with Care); Memorandum in Support of the United States’ Motion for Sanctions Against Google, LLC and an Evidentiary Hearing to Determine the Appropriate Relief, ECF No. 495–1, Ex. 1 at -251–304 (exhibit PX-120 from Epic evidentiary hearing) (example of “Communicate with Care” training).

1229. Eighty-five of the documents admitted into evidence during trial were initially marked as “privileged” and later deprivileged. Fifty-four of those documents were deprivileged only after the Government filed its first motion for sanctions against Google due to its “Communicate with Care” policy. Tr. 964:12–17 (Kolotouros (Google)) (questioning on UPX0713, used at Mr. Kolotouros’s third deposition following deprivileging of documents).[16]

[16] After multiple rounds of re-review of “silent attorney” emails, Google abandoned privilege on 12% (26 of 210 documents) of the random sample the Court requested for review in chambers, prior to their submission, demonstrating that Google only closely reviewed documents marked as “privileged” when it was clear it would be held accountable. May 12, 2022, Status Conference Tr., ECF No. 353, at 60:16–67:21.