GOOGLE MUST TURN OVER MORE DOCUMENTS IN LABOR CASE

Judge says company overreached in claiming attorney-client privilege

Google wrongly claimed attorney-client privilege to protect documents subpoenaed in a National Labor Relations Board case filed by former employees who say the company fired them because of their unionization efforts, a labor judge has ruled.

The administrative law judge, Paul Bogas, whom the NLRB appointed as a special master to review the documents, said in a report Friday that “this broad assertion is, to put it charitably, an overreach.”

The ruling is the latest legal blow to Google’s defense against a complaint, brought by the labor agency in December 2020, that said the company illegally fired and surveilled employees who were involved in labor organizing.

A Google spokesperson, Jennifer Rodstrom, said in a statement Monday that the matter had nothing to do with unionization but was about employees breaching security protocols.

“We disagree with the characterization of the legally privileged materials referred to by the complainants,” she said.

Bogas ruled in November that Google had improperly characterized 71 of 80 documents sought by the former employees as privileged. The latest report covers around 200 additional documents pertaining to communications around Google’s hiring of IRI Consultants, a firm known for its anti-union work, as part of Project Vivian, an effort to fight labor organizing at the company.

Google must hand over nearly all of those 200 documents, Bogas ruled. He also ordered the company to produce for his review more than 1,000 additional documents that it logged as privileged.

Google’s argument that it had the right to withhold the documents was not “persuasive,” Bogas said, because IRI assisted Google with messaging that did not include legal advice.

In one document that the judge said did not pass muster for confidentiality, a Google lawyer explained that the company wanted consulting help for Project Vivian “to engage employees more positively and convince them that unions suck.” The lawyer provided a long list of areas where IRI could help, including “understanding the current sentiment around labor organizing/ unionization efforts at Google.” The lawyer did not mention assistance with legal help.

In another document that Google claimed was privileged, a different Google lawyer offered public relations advice but not legal counsel. The lawyer proposed that the company find a “respected voice” to publish an editorial about what a union would look like in a tech workplace to discourage tech employees from forming one. A human resources director said that she supported the idea, but that it needed to be done without Google’s fingerprints. IRI then sent a proposed editorial to the Google lawyer.

Bogas also chastised Google for marking documents as privileged just because a copy was sent to a company lawyer, even though the communication did not seek legal advice.