Google has wrongly used attorney-client privilege to protect subpoena documents in a National Labor Relations Board case filed by former employees who claim the company fired them because of their union organizing efforts, has ruled a labor judge.
Administrative Judge Paul Bogas, whom the NLRB has appointed as a special master to review the documents, said in a report on Friday that “this broad assertion is, to put it charitable, overbreadth.”
The decision is the latest legal blow to Google’s defense against a complaint, filed by the employment agency in December 2020, that the company unlawfully dismissed and monitored employees involved in the organization of work.
Judge Bogas ruled in November that Google had incorrectly labeled 71 of the 80 documents sought by former employees as privileged. The latest report covers around 200 additional documents regarding communications regarding Google’s hiring of IRI Consultants, a company known for its anti-union work, as part of Project Vivian, an effort to combat workers’ organization in the business.
Google must hand over nearly all of those 200 documents, Judge Bogas said. He also ordered the company to produce for its review more than 1,000 additional documents which it registered as privileged.
Google’s argument that it had the right to withhold documents was not “persuasive,” Judge Bogas said, as the IRI aided Google with posts that did not include legal advice.
In a document that the judge said failed to meet confidentiality requirements, a Google lawyer explained that the company wanted consultancy assistance for the Vivian Project “to engage employees in a more positive way and convince them that unions are zero ”. The lawyer provided a long list of areas where IRI could help, including “understanding the current sentiment regarding worker organizing / unionizing efforts at Google.” The lawyer did not mention legal assistance.
In another document that Google said was confidential, another Google lawyer offered public relations advice, but not legal advice. The lawyer proposed that the company find a “respected voice” to publish an op-ed on what a union would look like in a tech workplace to discourage employees at Facebook, Microsoft, Amazon and Google from forming one. . A director of human resources said she supported the idea, but it had to be done without Google’s fingerprints. IRI then sent an editorial proposal to the attorney for Google.
Judge Bogas also criticized Google for marking documents as privileged simply because they were copied by an attorney for the company, even though the communication did not seek legal advice.
“A business cannot conceal a document in secret simply by providing a copy to a lawyer,” the judge wrote.
The New York Times earlier reported that Google encouraged employees to aggressively mark internal communication as “A / C Priv,” which is short for “attorney-client privilege,” in the subject line, even s ‘they are not looking for legal advice.
Google has denied this is the case and said it informed employees that they should only do so when appropriate.