Google routinely hides emails from litigation by CCing attorneys, DOJ alleges
arstechnica.com
arstechnica.com
They also told us about the cc the lawyer trick and that it wouldn't work. It was extremely clear they were trying to avoid recording conversations. It's many years later and my current employer auto-deletes slack messages after a week (so everyone copies them to google docs to save things). We waste a ton of time trying to save off important things. At the same time many many important communications seem to happen on slack. Plus we have zoom meetings, we can record them, but they get auto-deleted after some number of months.
We incentivized the lawyers to waste time of the engineers.
I agree that it's not what's intended for ACP. But lots of companies use it and don't bother to educate their employees on the rules of what constitutes appropriate usage of ACP tagging.
It's not even clever, criminals have used the same idea, starting in analog form, forever.
That seems like sloppy terminology to me. I don't know why people want to call it a loophole.
If you steal a cookie from the cookie jar, with the (accurate) expectation that you probably won't be caught, there is no loophole. At least to me, the word implies a hole in the rules, not an issue with enforcement.
The loophole is how you hid and the crime is what was hidden.
You can only say that if you'd seen the contents of the communication.
This is like the legal version of encryption. Why would you hide all these conversations unless you have something to hide?
AC privilege is a critical part of the legal system, and so cannot be circumvented, so without an escape hatch for abuse, any company (or gov agency) could permanently shield everything they have from subpoenas, etc
Hence the rules for privilege set out that abuse of privilege can waive some or all privilege from your communication, even things that would otherwise be legitimately protected.
So blindly CC’ing counsel not only does not protect things that aren’t legitimate, but can remove protection from things that otherwise are.
The only way for an outside party to determine that is to see the contents of the communications. If an outside party can see the contents of your communications, they are not private.
The party claiming malfeasance does not need to show actual invalid content, it is enough to show a systemic behavior or pattern of misuse. The inability to see the content in that misuse is why, in general, abuse of privilege doesn’t void AC privilege on a few documents, but can completely negate all of it.
Competent businesses do not try to be clever, and include training that says not to try simply cc’ing counsel on everything. Because if you are cc’ing counsel on everything you are very clearly making a case that the content of the communication isn’t relevant to whether or not you are including counsel, and so you can lose privilege.
As I said elsewhere, this isn’t new or novel, and is a very well understood limit on AC privilege.
When people gamble on disobeying rules because the odds of being caught are low and so are the penalties, I think it's self-deception to call it a "loophole" with the implication that it's somehow legitimate.
Like tax evasion.
The reason is very simple as I understand it: if you are found to have abused privilege a judge can decide that you lose privilege on relevant communication, and if you have something systematic as is being alleged here, then the judge may simply declare that you waived/forfeited privilege.
Abuse of privilege is not a novel, recent, or in anyway unreasonable claim. It is established law and has been for a very long time. Hell, It can also be brought up in civil cases between private entities.
Do not try to “technically” or “clever” your way around the legal system.
One of my financial success goals was to have the lawyers that would be able to cite the case law supporting a statement like that.
I have that for some industries (and its a fools errand to have it for all industries all the time), and have learned a lot along the way. Its interesting to see organizations employ the utility of lawyers to this degree.
Aside from having reality shaping counsel, I like that it raises the cost of investigation by orders of magnitude. Makes the government think twice, or thrice, before inconveniencing anyone.
You chose to imagine an uncollaborative and harmful thing, there are just as many benign things to imagine.
I can't imagine many benign things that one would feel the need to cloak behind attorney-client privilege. Maybe a surprise party for a DOJ investigator?
Google and some email clients suggest who to CC nowadays. You dont have to think about it. The counsel is already hired and there. Just CC and who cares what is being discussed. Thats what the article is about.
Think about the difference in power, many people get a lawyer for a reactionary reason. Because the threat and damage already occurred, the utility of a lawyer is extremely limited.
Alternatively when a lawyer is there preemptively, at all times, the threat is simply harder to materialize.
My point is that its much less likely that people were consciously trying to hide something - most of the time - which is my point. Everything can have a semblance of legal advice, putting the onus on the government to parse that first or decide if its even worth parsing that, in comparison to just getting a subpoena rubber stamped and railroading someone into prison. One is more expensive than the other. “Hm we don’t know what they did, what legal strategy they employed, and even if we got a subpoena on the little evidence we have, we cant use any of their communications for evidence, attempting parallel construction will leave us caught red handed, and we already know they have the funds to see this through, maybe we should stick with someone that cant afford their base level of rights”
Like a lawyer, it is extremely easy for me to compartmentalize my appreciation of the tools from the theoretical negative consequence you chose to imagine. I chose to imagine all the people that take plea deals from an overzealous government.
The whole point of a policy is that people aren't consciously acting according to their whim. Like a document destruction policy.
But large companies often have hundreds of lawsuits going at any given time. So the policy would be introduced with the conscious intent that they would like to hide as much as they can regarding all of them.
You're damn right we do -- I don't share this fear that the government is going to be randomly "getting a subpoena rubber stamped and railroading someone into prison". Maybe this is a function of my ignorance of plight of the little-guy big-businessman, or maybe it's a function of the way I make a living. Are you engaging in financial activities that would invite government scrutiny?
>“Hm we don’t know what they did, what legal strategy they employed, and even if we got a subpoena on the little evidence we have, we cant use any of their communications for evidence, attempting parallel construction will leave us caught red handed, and we already know they have the funds to see this through, maybe we should stick with someone that cant afford their base level of rights”
Making one's particular malfeasance that much more difficult to investigate would indeed disincentivize beleaguered underfunded government white-collar crime investigators. Solid!
To me, it’s not about “should this specific thing be cloaked behind privilege?” but rather “to make the attorney-client relationship productive and to make representation effective, they should be privileged”.
“You have nothing to fear if you have nothing to hide” is not an argument for much of anything and certainly not for by default removing the privileged nature of communication between an attorney and their client.
If Bob Jones emails Joe Schmoe and cc's Dewey Cheatham & Howe, maybe the communication to the lawyers is privileged, but why would the communication to Joe be privileged? It's neither to a lawyer nor asking for legal advice.
They also put "privileged and confidential" in the subject and/or email body.
At least, this is how I recall it working. Recovering a unified concept of an email is done afterwards.
But more pragmatically, the agencies themselves just use their budget allocation on lower hanging fruit