For such privileges to apply, Bogas said, there must be a case that’s being currently litigated—or at least expected to be litigated. Google “cannot spin the mere fact of a nascent organizing effort among employees into ‘litigation’—like straw spun into gold—that entitles it to cloak in privilege every aspect of its antiunion campaign,” Bogas wrote.
What’s more, “the documents confirm that IRI did not give legal advice but rather was retained to provide antiunion messaging and message amplification strategies tailored to the Respondent’s workforce and the news and social media environment,” Bogas wrote.
Many of the documents that Google claimed to be protected by attorney-client privilege or work product privilege “were, in fact, communications between non-lawyers, with attorneys included, if at all, only as ‘cc’d’ recipients, and without any statement seeking legal advice,” he said. IRI, he pointed out, “gave campaign messaging, not legal, advice.”
Bogas noted that Google’s own internal memos that advocated hiring IRI do not mention retaining the firm for legal advice but rather for communications and messaging:
According to the document recommending the retention of a consultant, the purpose of the consultant would be to: “[H]elp us understand the current sentiment around labor organizing/unionization efforts at Google; map out the current stakeholders, risk areas, and efforts; and work with Google stakeholders to create and activate a proactive strategy for positive employee engagement, education, and response. We are also looking for guidance on how to engage our executives, leaders, managers, and Googlers appropriately, arm them with the right information and facts, and be able to proactively engage on these matters.”
Other documents might have qualified for attorney-client privilege, but Google waived those rights when it shared them with IRI, a third party that Bogas said lies outside the privileged relationship. Google sent other documents for in camera review already redacted, making it impossible to determine whether the requirements for attorney-client privilege were met.
Bogas has ordered Google to tell him how attorney-client privilege might apply to the disputed documents in light of his finding that any communications with IRI fall outside the attorney-client relationship. Google has until January 21 to respond.