Google’s Union Campaign Strategy Documents Not Privileged, NLRB Administrative Law Judge – Employment and HR

Google recently suffered a blow in its ongoing National Labor
Relations Board litigation, when an Administrative Law Judge
appointed to rule on a discovery dispute ordered the Silicon Valley
company to turn over the lion’s share of certain documents
subpoenaed by former Google employees. Discovery issues have become
more prevalent in NLRB litigation as massive document subpoenas
issued by the government are the norm. The disputes are almost
singularly one-sided: The agency is shielded from almost all
discovery but is free to serve its own subpoenas. A recent ruling
by an Administrative Law Judge demonstrates the perils of
attempting to cloak vast categories of documents as attorney-client
privileged or work product.

Google, which faces allegations of unlawful interference with,
and retaliation for, employees’ union organizing activity, had
sought to characterize the documents at issue, communications
between Google and a labor relations consulting firm, as
privileged. The disputed documents included advice and materials
provided by the consultants to assist Google in mapping out its own
campaign strategy.

“Privileged” materials are, of course, generally not
discoverable. The attorney-client privilege protects communications
between an attorney and client made, in confidence, for the purpose
of obtaining legal services. It is generally insufficient to simply
mark a document with a privileged label or to copy attorneys on the
communication to protect the information from discovery.

In rejecting Google’s argument that the attorney-client
privilege applied, the Administrative Law Judge focused on the
consultants’ status as third parties outside of Google’s
attorney-client relationship. Communicating with a non-legal third
party, like a consulting firm, can be fatal to later attempts to
classify those communications as confidential or legal in nature,
as is required for privilege to attach.

“Between an Attorney and Client”

Google argued that its communications with its consultants were
protected by the attorney-client privilege because Google’s
lawyers were included on these communications. However, simply
including lawyers on an email thread or forwarding materials to
them does not automatically shield those materials.

For example, instead of sending certain materials directly to
Google, the consultants would first send them to Google’s
outside counsel, who then passed the materials to Google. The
Administrative Law Judge labeled this practice as a
“disingenuous” effort to “conjure a privilege.”
For privilege to attach, the attorney must actively participate in
the communications.

“For the Purpose of Obtaining Legal Services”

Sharing communications with a third party generally but not
always waives the attorney-client privilege. When sharing is
necessary to obtain legal advice (for example, when the client
requires a translator), the privilege can remain.

The Administrative Law Judge poured cold water on Google’s
argument that this exception applies to the consultants’
materials. The consultant communications could not have been
“necessary” to obtain legal advice because, at the time,
Google was not seeking legal advice at all. Rather, Google
contracted with the consultants to obtain advice on campaign
strategy, which is not a legal issue.

The fact that Google’s lawyers reviewed the consultants’
materials in order to issue advice on the materials’ legality
did not change this calculus. The Administrative Law Judge deemed
this argument “nonsensically circular” because the
necessity for that particular legal advice did not arise until
after the documents were created.

Takeaways

The bottom line for employers is that they should be mindful
that communications with third parties, such as labor relations
campaign consultants, are not necessarily privileged and may be
discoverable in litigation. This is the case even if lawyers are
included on those communications.

This decision comes shortly after another discovery ruling that covered
similar ground. In October, a New York judge found that actor Kevin Spacey’s
emails to a public relations firm—another non-legal third
party—were not privileged, even though Spacey’s lawyers
were included on the emails.

In the ruling discussed here, the Administrative Law Judge had
reviewed only 80 out of a total of 1507 disputed documents. Of
those 80, he only characterized nine as privileged, suggesting he
may continue to take a narrow view of privilege for the remaining
materials. Interested parties should keep an eye on whether future
rulings shed additional light on the scope of privilege.

Google’s Union Campaign Strategy Documents Not
Privileged, NLRB Administrative Law Judge

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.