OA580: Google Caught Pulling Privilege Shenanigans

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments, this is episode 580, I'm Thomas, that's Andrew Torrez, how you doing? Why were you so easy on the child pornographers, Andrew? Why? Why were so easy?

0:01:23 Andrew: I'm exhausted, Thomas. How are you? Oh, yeah.

0:01:30 Thomas: I'll let you answer why, why were you? But you were easy on them, I'll answer why were, were you, God, 8 hours of that, have they?

0:01:31 Andrew: Okay. Well, yeah, yep, yep. It's been a challenging couple of days watching the farce that is the Ketanji Brown Jackson hearings. Um, we're going talk about that a little bit, I, uh, I teased this on Cleanup on All 45. Um, at the beginning of the week, my thought was to go point by point through the nine cases that, uh, Josh Hawley is using to try and smear Judge Jackson as being soft on child porn. Um, as it turns out, I, I think everybody has sort of seen through what a ridiculous argument this is.

0:02:17 Thomas: Are you being too optimist prime? Enough people have, I feel like, though, as long as, look, and, and, you know, sorry to interrupt, but I think you said some of this on Cleanup as well. There's so many things that make this disgusting, not the least of which is, uh, you know, obviously, they're, if they, somebody make a super cut of all the pledges they made on day one of, "we're gonna, unlike those Democrats on the left, we're going to be respectful," and then just cut to all the bullshit the last couple days. That That would be a good video if somebody hasn't already made it. But other thing that makes this so ridiculous and just abhorrent and disgusting is they don't need to do this. This is nothing. This is our third vote. What is it? Yeah, like it's nothing. It's an insignificant vote on a court that it's going to happen anyway, like she's going to get confirmed and it won't matter for decades unless something crazy happens. Like, you know, the infection I'm rooting for wins. That might help. But even then,

0:02:19 Andrew: Well, I, you know, No, no, no.

0:03:12 Thomas: Even then we're still in the minority on the court. This is all just for what, Andrew? It's for riling up their base.

0:03:18 Andrew: To fundraise, right? To keep the perpetual outrage machine going. And also, let's like, not underestimate this part, because I made this mistake in 2016, It right. Is a real contingency plan. Like you fight Right. Like hell if you're the Republicans to do whatever you can to gum up any potential accomplishment, any potential activity by the Democratic administration. And who knows, maybe you stumble into something that winds up having legs. If Right. It doesn't, then, you so be it. But I did not think that Mitch McConnell could delay advice and consent on a Supreme Court nominee for an entire year. I did not think Donald Trump would win the presidency in 16. So I thought all of that was for show. And it turned out not to be Like right. They actually stole the Supreme Court seat on

0:03:20 Thomas: Yeah. Right. Yeah, well,

0:04:05 Andrew: That. And so, you I think the idea here is throw everything you can at the wall. Hope that something sticks. My prediction is none of this is going to stick, but, um, yeah. It's It's Ridiculous.

0:04:16 Thomas: And that's the other thing I was going to say is sticking means one Democrat going with it. And we all know who we're thinking of when we think of one Democrat. And that's all that matters, you know. And if as long as the 50 Democrats are not buying this nonsense, then we're fine.

0:04:17 Andrew: Yeah. That's That's All that It takes. Yeah. Right. Yeah. Then We're

0:04:33 Thomas: And if not, then We're Screwed Beyond Hope.

0:04:33 Andrew: Fine. Yeah. Hi. I think this is also aimed at Lisa Murkowski and, and Susan Collins, both of whom previously voted to confirm Judge Jackson to the U.S. Court of Appeals for the DC Circuit, you know, the Triple-A club for the Supreme Court. Right. I will give this, so, the top line summary, and again, we're going to link this, we've already linked it on, uh, the OpenArgs.com page, it is called Holly-KBJ-Refutation.pdf, and it will be linked in the show notes. This is from listener Gary Olsen, and it goes through every single one of Judge Jackson's child pornography cases, of which, by the way, there have been 10 in 10 years.

0:05:16 Thomas: Yeah.

0:05:16 Andrew: Right, like this is not, yeah, common Thing, and

0:05:17 Thomas: They make it sound like she worked in child porn court. Like that's the whole court of her career.

0:05:19 Andrew: Yeah. Like This was Law And Order: Special Victims Court, right. Yeah, no, it was not. And, uh, the argument of she's routinely giving, giving more lenient sentences to offenders who are convicted of possession of child pornography is ridiculous, out of context. And the number one thing that it omits is, so, for example, let's, let's take just the one case, which is the U.S. versus Hawkins case. Right. The argument that Josh Hawley made was in the case of USV Hawkins, the sex offender had multiple images of child porn. He was over 18. The sentencing guidelines called for a sentence of up to 10 years. Judge Jackson sentenced the perpetrator to only three months in prison, three months.

0:05:23 Thomas: Yeah. Wow.

0:06:02 Andrew: Well, that, yeah, That does not reflect the following facts. Number one, Hawkins pled guilty through a plea agreement? When you plea, your levels are reduced, right? That is active cooperation with the government, acceptance of responsibility. It reduces your levels on the sentencing chart. Prosecutor, the U.S. attorney in that case, requested 24 months of imprisonment, specifically told Judge Jackson, hey, we want to to depart downward from what the sentencing guidelines say. This is a defendant who has cooperated. This has shown remorse, acceptance of guilt. It would be manifestly unfair to lump in Wesley Hawkins, the defendant in that case, with the statutory requirements and to treat Wesley Hawkin the same way you would treat folks who manufacture child pornography.

0:06:03 Thomas: She must love child porn or something.

0:07:00 Andrew: So and the government specifically requested a downward sentence, and that's what happened. Court entered a sentence that was below the sentencing guidelines, largely because both parties agreed. And the majority of these cases are cases in which Josh Hawley will not tell you that the government requested either a sentence at the bottom of the sentencing guidelines or to depart downward below what the sentancing guidelines say. And Judge Jackson did that. That is what judges do. In each and every one of these cases, Judge Jackson requested data from the United States Sentencing Commission for, hey, what is the average time for which these defendants are typically sentenced in courts across the country?

And that data is aggregate, right? Not blue courts, red courts, Trump appointees, Obama appointees. Just sentencing commission, you tell me what's the typical range that these typical defendants get. And in each and every case, Judge Jackson's sentences were within the sentencing guidelines statistical range, So there you go. And again, I'm going to put the chart up. If you get a particular case thrown at you by your Uncle Frank, the very first step is to ask Uncle Frank, hey, do you know if the prosecutor, what the, what sentence the prosecutor requested in that case? And if your argument is just Judge Jackson doesn't, know, doesn't boilerplate what the prosecution wants, we call that being a judge.

0:07:34 Thomas: Yeah. Yeah.

0:08:35 Thomas: Yeah. Or you could just, if your Uncle Frank asked you about this, you could just be like, I don't care about arguing with you about this because she's going to be confirmed and you can go ahead and be sad about it if you'd like. Breaking news. Whatever that noise was. Was that like a telegram coming? Why did they do that noise in the old timey? That must've been it. Yeah.

0:08:51 Andrew: That Yeah. Yeah. That's That's I Teletype.

0:08:54 Thomas: Well, I got a telegraph. Telegram, Andrew.

0:08:56 Andrew: Teletyped machine, yeah.

0:08:57 Thomas: Ah, well, Trump v. V. Clinton, the lawsuit that I'm sure is going to blow the lid off of all the, I don't know, nothing. That anyway, just hot off the presses, how much of it have you read and memorized in the 10 minutes it's been out?

0:08:57 Andrew: The Little ticker. I I've It literally came out 14 minutes ago. I, I, I read some of it. I, I scrolled to the bottom to see which lawyer will be disbarred next, uh, and my money is now on, uh, serial offender Alina Habba. We have mentioned her on the show before. And, uh, this is a nut bar of a lawsuit. It, it alleges a A vast left wing conspiracy from 2016 to smear Donald Trump in the hopes of who the. All right. Like, I am seriously curious how this lawsuit is going to, you solve the statute of limitations problem, how it's going to show damages. Is, since, uh, as we all know, Donald Trump won the 2016 election.

0:09:13 Thomas: Well,

0:09:58 Andrew: It, conspiracy extends the statute of limitations to the last overt act, but there are no overt acts in support of the 2016 election.

0:10:06 Thomas: I'm Can he just be like, a civil conspiracy, how does that work? There's this, oh, You can? Oh, okay.

0:10:11 Andrew: You can allege a civil conspiracy. Yeah.

0:10:14 Thomas: Gotcha. What's the tort of like conspiring to do whatever the heck is in this thing? Well, we'll break it down in a later time, I'm sure.

0:10:15 Andrew: Yeah. We will. So it's going to be at least a week before we break this down because of course Trump filed this on a Thursday. He knew he did not want to Uh, face Uh, the wrath of Opening Arguments. Yep.

0:10:29 Thomas: Yeah. Scared of us. Well, more on that later. Hot off the presses. Sorry, everybody. I wish.

0:10:36 Andrew: More On, in both sense of the word, yep.

0:10:38 Thomas: Yeah. And another thing we can't talk about now, but we'll talk about on Tuesday's show. So sooner than a week from now. Eastman, the document thing that never ends, apparently.

0:10:49 Andrew: Yep. And it, uh, continues never to end. So we will bring you all those updates, hopefully by Tuesday. We might have, uh, the initial order regarding the 111 documents that are undergoing in-camera review of this record. The judge has still not issued, uh, any ruling with respect to that. And, um, my suspicion is that, uh, that the judge is is very carefully crafting an order, but, but, who knows? Judges, right, are tragically and criminally overworked right now. So, um, I Were the judge, this, this would kind of be at the top of my to-do list. But, but you, it is what it is. I will update you on all those developments next Tuesday.

0:11:31 Thomas: All right. Well, how about today's show? Let's let's get to that.

0:11:34 Andrew: Yeah, I

0:11:36 Clip: Down the law, down the law.

0:11:40 Thomas: All right, little update on the Leah Thomas story. I know you did a quick rundown of this on Aisle 45. Everybody check that out. It was a good little explainer. What more do you have to tell us over here on Opening Arguments? Good

0:11:53 Andrew: To say if you're already exhausted at being used as a political football, we have a lot of trans listeners. This is a good news segment. So please listen, listen through. I'm going to read from the Republican governor of Utah, Spencer J. Cox, his veto of Utah House Bill 11. And House Bill 11 is one of these monster anti-trans virtue signaling bills. It would change Utah Code 53G-6-901 and 902 to do the following. And again, I'm reading from this bill, so know that I don't endorse this language, which defines sex as the biological physical condition of being male or female determined by an individual's genetics and anatomy at birth, which is just, why not define pi equal to three in your legislation, right?

0:12:03 Thomas: Oh

0:12:47 Andrew: It. Would.

0:12:47 Thomas: That would make math so much easier. That would be a better use of Republicans' time. Hmm.

0:12:48 Andrew: Right. It. It 100% would be. So, uh, all right, defining sex in a, a way that is contrary to, you know, what biology says, and then saying a public school or local education agency, LEA, that is K to 12 or a private school that competes against a public school or LEA shall expressly designate school athletic activities and teams as one of the following based on sex, right, with that definition that we just read: one, designated for students of of the male sex, two, designated for students of the female sex, or three, co-ed or mixed.

0:13:24 Andrew: And then subsection B, a student of the mail sex may not compete, and a public school or LEA may not allow a student of the mail sex to compete with a team designated for students of the female sex in an interscholastic athletic activity. And then there is where this bill was going in the first place. All of that is kind of shoved into an, in the alternative, section. And, you know, we've talked about this in springing legislation before, but this is the first time I've ever seen it this detailed in a bill that's basically like, all right, now the main thing this bill does is probably unconstitutional, so if it's ruled unconstitutional, then we want to substitute this entirely different procedure. And that entirely different provision would say you compete in the sport that is assigned to your birth certificate. And if you.

0:13:24 Thomas: Oh You have a sport assigned to your birthday?

0:14:18 Andrew: Yeah, it's assigned to the gender that is marked on your birth Certificate. And then you have to petition a special board if you want to do otherwise. And the board will look to determine whether this would, you unfairly disadvantage everybody else in the activity or whatever. Those provisions we're not going to get into because this legislation was vetoed by a Republican governor in Utah. And want to talk about his reasoning, how we got there and how we can use this as a model going forward, even in the reddest of red states. The first part that I think is really, really important is is the only negative aspect of this. Right. And that is there is a reference to Leah Thomas in this otherwise good letter in support of the veto. And I think this illustrates the importance of engaging with bad faith misrepresentation of the facts, because the the the way your uncle Frank thinks things happened is right now affecting actual legislators. Right. So in vetoing the bill, here's what Governor Cox said.

0:14:18 Thomas: Okay.

0:14:41 Thomas: In Utah. Nope.

0:15:28 Andrew: He said, I think it's important to address some of the arguments that came up during the passage of this bill. Many legislators brought up the trans swimmer at the University of Pennsylvania, that's Leah Thomas, who has recently dominated women's swimming, setting records and lapping the field.

0:15:41 Thomas: Nope. None.

0:15:43 Andrew: None of that is true. And I mentioned some of that on a brief segment on Clean Up on All 45 on yesterday's show. The source for that data is a blog called Pink Manta Ray, and we will provide a link in the show notes, pink manto ray.com slash Leah, and that has hyperlinks to the actual data which shows Leah Thomas, world-class male competitor, complied with the NCAA rules, world- class female competitor after her transition, and there is absolutely nothing suspicious about it. She is not dominating women swimming. Her, her time was, uh, consistent with and behind, uh, record-setting women's time, less right than her time as a male because she's undergoing hormone replacement

0:15:45 Thomas: Of it's true. Well, More, but

0:16:31 Andrew: Therapy. Yeah. Sorry.

0:16:31 Thomas: Yeah. More time.

0:16:33 Andrew: Hey, hey, a worse time, yeah, uh, all of those things go not, yeah, yeah. Yeah. Not, just is not the case. This sort of bizarre fantasy of, oh, yeah, well, you know, you take an average guy and you stick them in female sports. And, you know, that guy pretending to be a girl, which is the key aspect of the, you know, the Mike Huckabee obnoxious, like, well, I'll just pretend to be a girl.

0:16:35 Thomas: Yeah. And significantly, too.

0:16:58 Andrew: And go into the it's gross. It's disgusting and it's false as a matter of fact.

0:16:58 Thomas: Yeah, I don't believe that many people in the history of humans would do something so ridiculous, except maybe Mike Huckabee. He might be the only one that would do something so disgusting as to pretend to be a gender. He's not to gain some sort of, I don't know, sports advantage, but like, think of how people, I guess, I dunno what these uncles, Frank think. Like, do you really think that someone would do, would medically transition and take, I believe Leah Thomas had to take one or two years off of swimming. I think. Like, can you imagine?

0:17:32 Andrew: Yep. She took she took two years off. The minimum is one year.

0:17:36 Thomas: Can you imagine you do that, all that for what? To do pretty well in swimming in NCAA and then what? And then like, you're just the rest of your life. You've again, going with the Mike Huckabee nonsense. Like then you've just medically transitioned to being female forever to get that. Like, who do you think would do that? Like what kind of, I mean, for the, for...

0:17:36 Andrew: Yeah.

0:17:56 Andrew: For the for the glory of winning the NCAA women's 500 meter freestyle competition.

0:18:02 Thomas: Yeah, someone who already was doing well before transition.

0:18:05 Andrew: Look.

0:18:05 Thomas: Like, you could just do that. Are you kidding me?

0:18:08 Andrew: Yeah, mind you, this competition was going on the same weekend as the NCAA men's and women's college basketball tournaments. Right. Like they're there. If if five people who were not the immediate family of the competitors watched those events, I don't even know that they were televised. Right. I mean, this is the idea that you get more never ending fame and fortune by winning T3BE than than you do.

0:18:32 Thomas: Yeah, that's true. Leah, if you want to play T3BE, we would love to have you.

0:18:35 Andrew: Oh, gosh, we would. And that's it. Look, that's not to to belittle her, the sport or her accomplishments or whatever. That's right. Right.

0:18:40 Thomas: Not to belittle the sport, It's the fact that these conservatives do not give a shit about women's sports until they can use it as some sort of political ploy.

0:18:46 Andrew: Yeah. Yep. That is exactly right. So, more on the bad news before we get to the good news. So this is Governor Cox. "I agree with those who are concerned with this egregious example. I believe this is terrible for women's sports. There are natural advantages that come from our birth sex." And again, I right, don't endorse this language. This is Republican governor, "which is the reason we have men's and women's supports in the first place." OK, I'm not going to go on and continue reading that because this is going to be a positive story, but uncle Frank-isms, right, mischaracterizations of stories affect legislation. This is a governor doing the right thing who nevertheless believes the Fox News story about Leah Thomas. That's why we have to challenge and engage with this kind of nonsense every time we see it. So keep that up, I should add, there is the potential that this veto could be be overwritten by the Republican legislature. Yeah. So, Governor Cox, it's still a good new segment, right?

0:19:44 Thomas: You promised a good news segment, Andrew. All right.

0:19:48 Andrew: Governor Cox has basically issued a carrot and stick to the legislature in terms of here's why you shouldn't override my veto. Let's talk about the stick first. And it comes first in the in the letter. He says this is counterproductive. This legislation is counter productive and will bankrupt our state athletics program. One of the worst results of the process in substituting this complete ban on trans athletes participating in female sports is the inability of legislators to understand the financial impacts that will be forced upon the Utah High School Athletic Association and local Utah school districts that will inevitably get sued under this bill. The UHSAA is a private organization and runs the real risk of insolvency and bankruptcy, by the way, that's the same in every state, right?

0:20:37 Andrew: Like you have these public-private partnerships, right, putting our entire state athletics program in danger. Having just completed a very lengthy and very expensive lawsuit, the organization does not have significant reserves on hand, and the UHSAA has been clear that if the state ever attempted a ban, the state would also need to provide indemnification to hold the organization harmless in the forthcoming lawsuit. Suit, I hope you can agree that if we want to protect women's sports, bankrupting the institution that is responsible for their participation is a bad place to start.

0:20:36 Thomas: Right, yeah. Yeah, I don't think there's any guarantee Republicans care about that. But yes, that is a great that. No. And also, I wonder you being Andrew, what's what's the case he's referencing? You must have looked that up? Dear God, we just finished a lawsuit we barely were able to pay for where we tried to ban women completely. Like, I know what Mormon hell will this lawsuit have been?

0:21:14 Andrew: Oh. Yeah, um, so that The The prior case, as you might imagine, was a case of equal access to, I believe in this case, it was a middle school flag football team by a woman who, a girl, a very young girl who wanted to play on the, quote, boys team. So, yeah, this is not a thing with which Utah is unfamiliar. And right? It's obvious.

0:21:42 Thomas: Right. Yeah. And I'm Sorry, just to pause on that. He's referencing how expensive and how they just slogged through a lawsuit that apparently was all because they wouldn't let a little girl play on a flag football team. This is what these people care about. This is their priority. In this day and age, this is Republicans' priorities, just so we're clear. How pathetic is that? Okay, sorry.

0:22:03 Andrew: Mm hmm. Yep. Like being totally clear. So it is. It is. Then he says, "Many of you have said that because the lawsuits are against a government program, that governmental immunity would protect schools from a lawsuit based on the ban." But, quote, "Because these lawsuits would involve potential civil rights violations, they would not qualify for governmental immunity," that is 100% correct, right?

0:22:36 Thomas: Wow.

0:22:36 Andrew: So, uh, yeah, Republican lawmakers' misinformation that says, "Ah, don't worry about it, they won't be able to sue us." Yes, they will. Again, and I'm back to quoting Governor Cox, "Why would we risk significant legal exposure for some of our poorest schools with no financial support when other states are already funding identical legal defenses across the country." So that's a pretty good argument. "It is my understanding that you've polled your members and you have sufficient two-thirds majority to override a veto. Should this occur, I will immediately call a special session to at least change this section of the bill in order to avoid bankrupting our athletic association and local schools. A simple veto override will not resolve this fundamental issue." OK, that's the stick. What about the carrot? So.

0:23:20 Thomas: I'm not excited to hear about what that'll be. We'll discriminate against some other group just to make you guys feel better.

0:23:26 Andrew: I thought it was worth reading this. And again, this is a Republican governor. In my view, this ist someone to whom you can reach out and someone who is at least listening. And, you we have a tough way forward in this country. And I thought this provided a pretty good blueprint. So here's how Governor Cox concludes his letter. Finally, there's one more important reason for this veto. I must admit, I am not an expert on transgenderism. Don't.

0:23:49 Thomas: Is that a word?

0:23:50 Andrew: Yeah, I I don't love that language, but he's not an expert in it. That's OK. I struggle to understand so much of it, and the science is conflicting. Okay, again, that's bullshit. But but but that's fine, right. When in doubt, however, I always try to err on the side of kindness, mercy, and compassion.

0:24:00 Thomas: Also not true. Yeah, sure. Wow.

0:24:07 Andrew: I also try to get proximate, and I am learning so much from our transgender community. They are great kids who face enormous struggles. Here are the numbers that have most impacted my decision: 75 000 4, 1, 86, and and 56. Breaks down those numbers. 75,000 high school kids participating in high school sports in Utah. Four transgender kids playing high school sports in Utah. One transgender student playing girls sports, right, so the other three are obviously trans male kids. 86 percent of trans youth reporting suicide says suicidality, but ideation 56 of trans youth having attempted suicide. Then goes on: four kids, and only one of them playing girls sports. That's what this is all about: four kids who aren't dominating or winning trophies or taking scholarships, for kids who are just trying to find some friends and feel like they're are part of something.

0:25:03 Andrew: Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few. I don't understand what they're going through or why they feel the way that they do, but I want them to live. And All the research shows that even a little acceptance and connection can reduce suicidality, suicidal significantly. For that reason, as much as any other, I have taken this action in the hope that we can continue to work together and find a better way. If a veto override occurs, I hope we work can to find ways to show these four kids that we love them and that they have a place in our state. I recognize the political realities of my decision. Politically, it would have been much easier and better for me to simply sign the bill. I've always tried to do what I feel is the right thing regardless of the consequences. Sometimes I don't get it right. I know fault those who disagree with me, but even even if you disagree with me, I hope this letter helps you understand the reasons for my decision.

0:25:15 Thomas: Wow.

0:25:56 Thomas: Wow. Did you just make that up, though? And then the joke is like, ha ha, like a Republican would ever say that. Wow. That's incredible.

0:25:59 Andrew: Did. No actual Republican governor in

0:26:06 Thomas: Soon to be joining the Justin Amash irrelevant party of ex-Republicans.

0:26:06 Andrew: One of the reddest. Yeah. You say that, but let me give you the capper. Two days ago, Indiana Governor Eric Holcomb did the exact same thing. He vetoed House Enrolled Act 1041. He didn't put it quite as nicely, but what he said was, "I find no evidence to support the claim that there is an existing problem in K-12 sports in Indiana that requires further state government intervention." Intervention So yeah, I led with the Utah story because I wanted to read what I thought was a was a pretty moving section at the end, and to suggest you, talk about a lot of horrible things on this show, we talk a lot about how how bleak things are, but human connection, being able to to talk to people and and walk them through, you sometimes it works.

I want to, rose-colored glasses, but I do want to say that this feels like an opportunity, and hopefully this letter quoted gets and circulated, and that the—I don't know where the Log Cabin Republicans have been, but there is rigorous internal discussions and debate within the Republican Party to say, say, hey, look, you're putting our governors in a rough spot if you keep passing this kind of legislation. So I

0:26:41 Thomas: Yeah. Yeah. Wow.

0:27:24 Andrew: Don't know. But I felt I felt positive.

0:27:25 Thomas: No, that's great news. What a nice segment to be able to do. I just, again, four children they're talking about. They're passing the state legislatures, spending their time passing something that applies to one out of four children they know of in the entire state athletic program. That is, wow. Okay. But anyway, good news. At least one Republican has something of a heart.

0:27:31 Andrew: Yeah. Yep.

0:27:53 Thomas: This episode is brought to you by Aura Frames. When you think of a digital photo frame, you probably picture a clunky box where you'd put in an SD card point-and-shoot camera, but no, picture this, a thoughtfully crafted smart frame that makes your photos and videos beautiful to display and easy to share from anywhere in the world. We call it Aura. Instantly add photos and videos to your Aura frame using the Aura app. Stay connected to your favorite people when you invite them to your frame and surprise them with their own as a meaningful gift. You can even personalize it ahead of time by preloading a special message and cherished memories. I love our Aura Frame. I love it so much because there are tons of photos of Phoebe and Arlo that I have tucked away that I've forgotten about or while.

0:28:39 Thomas: But Lydia loaded like all of them onto our Aura frame. And so at any time during the day, there's a random cute photo of my kids on this beautiful frame. And it looks, the quality is fantastic. It looks amazing. I photo and because I love my kids and they're so cute to me, it's the perfect pick-me-up, and you don't have, here's thing, you don't have to put my kids in yours though, you can put your own kids, I think, I'm told, I'm pretty sure you can put your own kid, you want to put my kids, that you can, it'd be a little weird, but way, the frame will look amazing and I think you should get it, this is one of the most popular gifts for major holidays like Mother's Day, for Aura frames regularly sell out, so get yours at a discount while it lasts. And it's easy to set up. It takes about two minutes to set up the frame using the Aura app. The only thing you have to think about is your password. And you've got free unlimited storage.

0:29:24 Thomas: You can add 10,000 plus photos and videos and invite as many people as you want to a frame. There are absolutely no hidden fees or subscriptions. And right now, listeners can get ahead of Mother's Day gifting this year and take $20 off an Aura's limited edition matted frame by visiting auraframes.com slash opening. That's A-U-R-A frames dot com slash opening Terms and conditions apply.

0:29:53 Thomas: Today's show is brought to you by Buck Mason Clothing. Look, when it comes to clothing, we all have our go-to's, our things we wear every day, especially, especially now that a lot of us work from home. It's even more reason to have that same thing you wear every night. Well, I noticed this morning that my go-tos are now all from Buck Mason. Because their clothes are second to none. They're timeless. They never go out of style. Everything I own fit great right out of the box and away and became my new favourite right away, they make all the essentials, jeans, shirts, jackets, and so much more. I love the tailored look and the fit of their t-shirts, and even after wearing them and putting them through wash after wash, they look just as good as when I first wore them, this especially, they have one t-shirt that's like a thick T that I absolutely love. The fabric is very substantial and nice. It doesn't feel like a, you know, those cheap, just thin t-shirts.

0:30:39 Thomas: Can't stand them. That, not this. Buck Mason is substantial stuff and it's going to last. Couple, I like the Henley so much. I have a lot good Henley shirt. I ordered like three of them of different colors and I love them. I wear them all the time. Once you try Buck Mason, they'll become your go-to as well. Head over to buckmason.com slash OA and get a free t-shirt with your first order. That's B-U-C-K-M-A-S-O-N dot com slash OA to get a free t shirt with your first order that's buckmaison.com slash OA.

0:31:19 Thomas: Now it's time to talk about, Google's, this what you've called a very Trumpian lawyer play, uh, this is also what you're talking about is the one weird trick that doesn't actually work when it comes to, like, you know, the mafia having the lawyer in the room doesn't, uh, give you protection from everything. What's. What's going on in the Google privilege shenanigans they're going with?

0:31:39 Andrew: So a little bit of background. We actually talked about this case in Episode 433 in October of 2020, the waning days of the Trump administration. The DOJ filed an antitrust complaint against Google under Section 2 of the Sherman Antitrust Act to restrain Google from unlawfully maintaining monopolies in the market for general search services, search advertising and search text advertising in the United States through anti-competitive and exclusionary practices. Right. And those are side deals with mobile phone providers. I mean, you know, the complaint is very, very wide ranging. Again, go back. Episode 433. We cover the merits of the complaint. That was October 2020. It's only been a year and a half. So, you Know, what's been going on with that lawsuit?

0:32:26 Andrew: Suit, there uh are 328 docket entries, which, by the way, uh, if you want more support for my argument that, you, it is uh coat factory law firms that are behind pretty much all of the legal problems in this country. Uh, that's a good illustration of, this, that right is the DOJ, uh, suing, you one of the wealthiest companies on earth, and wealthy company has hired a barrage of coat factory lawyers with impressive credentials. I mean, from the very, very best firms in the country, to do what they do, and to, right? Do what they are ethically entitled to do, which is litigate the hell out of it, and what we're again, what I did for nearly two decades. But what we are entitled to do is point out the adverse social consequences of that. So, year and a half, we're somewhere in the middle of discovery. Right. And over the course of that discovery, DOJ has come to understand and learn things. Right? And in particular, they discovered repeated copies of a PowerPoint presentation for new employees.

0:32:41 Thomas: Yeah.

0:33:33 Andrew: And that PowerPoint presentation, they've chosen to call it the Communicate with Care program, it undergoes a lot of different name changes, but but they're all basically the same thing, first notes are, if you're dealing with a sensitive issue, it's important to communicate with care over email, you can follow these steps to ensure that your email communication is privileged in these circumstances. DOJ's complaint notes, there's no discussion about whether legal advice is actually needed or should be sought. And they say, based on what's happened in discovery that we're going to get into, we've realized that Google employees at every level follow the company's three-step formula of the following. One, including in-house counsel on sensitive business discussions. Two, adding the privilege header, right? Attorney-client privilege. And three, making pretextual requests for legal guidance.

0:34:05 Thomas: Yeah.

0:34:31 Andrew: Oh, this is how they summarize it, right. And we're going to talk, no, no.

0:34:31 Thomas: It actually says that? Oh, okay. Sorry. It's hard to tell because it's...

0:34:37 Andrew: Going to show you, I'm gonna talk about what the Google presentations actually do show. And this is really the critical part and the part Part spoiler, Google has replied to this and their reply is woefully inadequate. Right. It addresses what and and says, well, you know, you have to read these documents in context, blah, blah. But it does not address the most damning aspect of this particular motion, which, by the way, is a motion for sanctions. Right. So it's a motion that says is deliberately miscategorizing documents as privileged and they should have to give us everything. More on that in a minute. The other thing I want you to put a pin in is that the motion is remarkably candid about what actually happened, Like right?

0:35:25 Andrew: It admits, hey, as we're going through, Google has produced 4.5 million pages of documents so far in this litigation. Now that they have to write, we ask broad categories, they're going to dump a ton of documents on us. We're not saying there's anything inappropriate about that. But because of that volume, it took us a while to figure out what was going on. Here's how the DOJ puts it. It says, began challenging Google's overstatement of privilege claims beginning in June of 2021. Careful scrutiny showed the tens of thousands of privilege documents merely included in-house counsel on the carbon copy line, even though it is well settled that copying an attorney does not confer privilege, right.

0:36:04 Thomas: See opening arguments episode.

0:36:05 Andrew: Over The subsequent months, plaintiffs repeatedly challenged Google's privilege claims, even as plaintiffs work to understand Google's ongoing efforts to falsely claim privilege on common business documents, right. So what they're saying is, yeah, when we, we first looked at this, we saw that the privilege log had a bunch of documents withheld as privilege where it was just cc'd to a lawyer, and that's usually kind of a red flag, right, like If you, if, if you have two business professionals and you have a lengthy email chain and the only people talking on that email chain are the business professionals, but by the way, you there's cc general counsel and the general counsel never responds, you kind of look at that and go, well, well, that seems like they're probably over-claiming privilege in that case, right?

0:36:06 Thomas: Yeah. Yeah.

0:36:51 Thomas: Clarification. How did they get to see that if it was privileged to begin with? Is this like a taint team or something?

0:36:58 Andrew: So what you do when you withhold documents, you produce a privilege log, right, and that privilege log is an Excel sheet in which each line meets like five or six different criteria. It depends upon what you've agreed to produce and in what form, but it will list the author author of the document, all of the recipients, both CCs and BCCs of the document, the title of the doc, the day that it was generated, if known, how that was transmitted, and then a category at the end for the basis of the privilege claim, right? Either attorney-client communication or attorney-work product, right.

0:37:34 Thomas: Gotcha. And Google just put shenanigans in that category every time. We've noticed a lot of shenanigan's category.

0:37:40 Andrew: Well, they put attorney- client communications. But as we, that's right, as we look through this privilege log, we notice that there are a lot where the attorney only ever shows up in the cc line and so of their privilege log. So what we want you to do is go back and review that and, and are you sure you want to claim privilege here, right?

0:37:53 Thomas: OK, gotcha.

0:38:02 Thomas: Yeah.

0:38:02 Andrew: Because this seems like this is probably a mistake. And at the same time, they, they were, we're going through, so they're going through, lawyers at the DOJ are going through Google's privilege log and going, this seems kind of fishy. Other lawyers on the same team are going through the documents they did produce, and right? Seeing these slides in the middle of that, and then they kind of put two and two together and are like, "Oh, I see. The reason why 140,000 documents have been withheld that seem to just carbon copy lawyers is because that's what Google told its employees to do." Again, the key thing here is that you're looking for as a lawyer is you're looking for a stream of communications where the lawyers don't answer, right? Because that's a pretty good indication that it's not attorney-client communication. It's not an attorney work product, because there's nothing thing the attorney ever does, right? Typically when clients email me and ask for advice, I write back and give it to them, right? So you know, that's how that, that's a normal privilege log would work.

0:38:21 Thomas: OK. Yeah, yeah, yeah.

0:39:07 Thomas: Could they make an argument that it's like, well, each of them was asking for, you know, help, but then the lawyer called them every time after.

0:39:11 Andrew: Right? Hilariously, that is one of the defenses that is raised in the reply, so in the opposition, which we will get to, yeah.

0:39:23 Thomas: Yeah. Hire me, Google. I'll represent you

0:39:27 Andrew: You should, and then they add to that, that that Google has refused to re-review categories of documents directly implicated by Google's abuse of the attorney-client privilege. Although they have ultimately deprivileged numerous documents, many other questionable documents remain fully withheld or partially redacted. The full universe of unresolved documents is obscured by the fact that Google has refused, despite repeated requests, to provide an accounting of which documents it has re-refused and which documents it has depriviled. So we're coming to you, to the court, to say these are shenanigans. We want you to order Google to produce all of the documents where it has claimed attorney client privilege, carbon copied a lawyer, but the lawyer hasn't responded. We call that the silent lawyer theory here.

0:39:27 Thomas: For it. No.

0:40:13 Andrew: And the DOJ is sort of remarkably candid in a second way here by saying, you know, we get that this may include some legitimately privileged documents, but we don't know any better way. And the reason, and any harm occasioned by that would be occasioned entirely by Google's own conduct in trying to obfuscate what is legitimate attorney-client privilege and what isn't. You should err on the side of production. Stick a pin in that. Let's give some examples of what actual Google employees have done in response to receiving these kinds of presentations, right? "The communicate with care." Hey, every time you're about to talk about something sensitive in a business way, make sure you, number one, copy our lawyers, number two, write "attorney-client privilege" at the top, and number three, ask some kind of question whether you care about it or not. So, examples: on July 16th, 2019, a Google product manager updated two supervisors on negotiations for Google with LG, a mobile device manufacturer. In the email, the product manager offered his recommendation and sought input from the supervisors, both non-attorneys, on the business discussion with LG.

Nevertheless, OK, the project manager prefaced the email by writing, "privileged and confidential." "Confidential, Kate, please advise as needed." Kate Lee, the in-house counsel, was included as, Google taught, on the two line, but never responded. Google nevertheless originally withheld the entire email thread, including the subsequent emails that dropped the attorney from the discussion and were sent solely between the two non-attorneys. Um, and, and again, you should laugh a little bit at that, you could legitimately claim privilege, let's say, uh, Thomas, you write to me and you say,

0:40:59 Thomas: OK.

0:41:58 Andrew: "I want to undergo a business venture with Steve. Um, we're concerned about A, B and C." Okay, so that would be Thomas to Andrew, maybe Thomas copying Steve to Andrew. Then, right, you would see Andrew to Thomas, uh, hey, um, or, or Andrew to Thomas and Steve, "Thanks for your inquiry with respect to your three questions. The answers are one, two, three." And then you might write back and go, "thanks." Then there would be a subsequent email from you to Steve discussing my advice, right?

Because suppose, you know, one of my pieces of advice is, "Yeah, this is going to be legally fine, but to avoid the appearance of impropriety, Steve should sell, you knows, this piece of stock or whatever," right?

Then you might write back to Steve and go, "Hey, Andrew told us this was good, uh, but, uh, you've got to still sell that piece of stock, when are you going to sell your stock?" And then Steve writes back, just to Thomas, not copying Andrew, "I'm going to sell the stock on June 1, 2022." conversation between you and Steve, that subsequent conversation between you and Steve is attorney-client privileged. OK, so because you are discussing my legal advice, we would not want you to have to reveal a decision that you made as a result of conferring with counsel about a question of legal ethics. Right. So the fact that Google, claim privilege over subsequent documents that dropped off the attorney from the discussion is not in and of itself indicative of over-claiming privilege. But the fact that the attorney, Kate, never replied to any of these does give you a pretty strong indicia that, you know, this is protection.

0:43:13 Thomas: That makes sense.

0:43:35 Andrew: Contextual.

0:43:29 Thomas: Yeah. Unless, again, you use my phone call argument, that'd be hard to refute.

0:43:38 Andrew: We'll get there. On June 14th, 2017, a vice president responded to an email discussion about a slide deck that was being prepared for Google CEO Sundar Pichai. Over the next 15 hours, the Google employees on this email exchanged eight responses about negotiating strategy and the in-house counsel never responded and no legal advice was sought or disclosed. Nevertheless, Google's employees included some form of privilege marking on every subsequent email, including the top-level emails that remove the in-house counsel from the thread and were sent exclusively between two non-attorneys. Generic statements such as "attorney, please advise," adding "legal," or adding "attorney for legal advice" appear in thousands of Google documents, and these emails lack any specific request for legal advice, and the attorneys rarely respond. Then they go on, tellingly, when Google attorneys fail to respond to these generic requests, the non-attorneys do do not follow up with more specific requests for advice or even remind the attorney to respond. And again, that's a pretty strong argument, too, right? Like, hey, Andrew, I sent you an email last week.

There is, this is on page 12, evidence that Google employees frequently added language in the middle of an email thread. Like, I'm, quote, "I'm adding legal to make this privileged," end of quote. And that employees policed each other, right. Right. So this is from page 13. Often Google employees will correct and discipline colleagues' misfires in attempts to claim privilege.

0:44:15 Thomas: Yeah.

0:45:05 Andrew: For example, on a 2016 email thread in which Google employees discussed a business negotiation, again, not privilege. One employee reminded another that an attorney was needed for the communicate with care formula to actually work. He warned, I think you need a lawyer on this thread for this to be actually privileged. After being reminded, his colleague replied, and as directed at an in-house counsel, Tim Taylor, Google withheld this document as privileged.

0:45:32 Thomas: I'm surprised they didn't just all put it in their signature block on their email. It'd be like Thomas Smith, you know, CFO, adding legal, and then that'd be your signature.

0:45:41 Andrew: Please, Kate, tell me what you think.

0:45:42 Thomas: Yeah. Yeah, Kate, if I get a speeding ticket and, you know, those were all the legal questions we got early on the show.

0:45:44 Andrew: Yeah, right. Yes. Yeah. Attach a T3B question at the end of it. Right. Exactly.

0:45:51 Thomas: Yeah. Real property question.

0:45:53 Andrew: Yeah. So, what is the DOJ asking for? They are asking for sanctions, that, beginning on page 18, to say, "Look, this is a deliberate process and the remedy should be the production of all withheld or redacted emails where no attorney responded to the purported request for legal advice." And as I pointed out, they recognize that that's overbroad and they say, "Look, like, that's... that's where... that's why this is sanctions, because, uh, you should err on the side of the grieved party, us." They point out this is... that the court should think about this similar to spoliation and, uh, produce another smoking gun document. Google employees recognize that adding artificial and deceitful privilege has the same effect as deleting documents. For example, in responding to a colleague's request to "thread kill, please," a Google employee wrote "Instead of thread kill, please copy lawyer and make it privileged thread to get internal consultation."

0:45:53 Thomas: Yeah. Yeah.

0:46:50 Thomas: Oh man, those threads, those will do it. That happened a few times at my old office where it's like people would forget they talked shit somewhere early on in a thread where someone wasn't included, you know, and then like time goes by and they, oh, I'm CCing these other people. And then there's like, they go up in the thread and see all the nonsense they talk. That happens.

0:47:01 Andrew: Mm hmm. Right? Yeah, yeah.

0:47:12 Thomas: Kill the thread, everybody.

0:47:13 Andrew: And so right when your employees say, well, instead of killing the thread, let's just copy legal, That these are what you, you call bad documents. So that was filed March 21. Google filed its response March 24th, that is today as we're recording this. Their key strategy is twofold, right? Number one, to point out that the the sanctions standard is bad faith, and their argument is, yeah, we're not that bad. And and the second part is to then seize on the definition of the relief, right? That is, where counsel did not reply to the request for legal advice, and say that that's overbroad. And again, right, right? This is why the DOJ flagged that way. So their arguments, you read the entire opposition brief, never, ever deal with the actual way in which its employees responded to these documents.

0:47:18 Thomas: Yeah.

0:48:04 Andrew: Instead, they say, oh, well, you know, these are just being taken out of context. So their first argument is communicate with care means just use the best practices in the industry. Right. And they do this clever sleight of hand here where they they cite to another slide in the program that says marking an email or document privileged does not make it so, like, see, we do. But but notice that's not what the DOJ alleges. They don't allege that, you know, that you were instructed to just put privileged attorney work product on everything. They say you were instructive to market privileged, copy the lawyer, and include a pretextual request for advice that you don't care ever got answered.

0:48:13 Thomas: Sure. Yeah, Yeah, that sounds like bad faith to me, by the way.

0:48:44 Andrew: Yeah, it feels a little bad-faithy. They also cite to other slides that say, you know, you can't fake attorney claim privilege. And there is one that literally says you can't fake this. Right. Well, that's not really responsive to what was the practice. Right? Like warning you, hey, this is going to be a challenge is not the same as saying, hey don't do this. Is so that's right.

Their first argument, their second argument is that uh it is it is uh it is in fact best practices in the industry, it's backed up by legal commentators and analysis. This is pages seven to eight of the opposition and that's just wrong, it's just nonsense. It says that everything they cite, and I've been through those materials, are things like clearly label your written communications seeking or rendering legal advice. Right. Well, that doesn't respond to to include pretextual questions that you don't give a shit whether they get answered or not. So yeah, then, uh, there is uh an argument that says, you know, read these in context. And here, interestingly, uh we, I'm going to be on the lookout for the uh reply brief filed by the DOJ, which you know will come out after this recording. There's a good argument that Google waives its privilege right here. Right? So this is what they say in their brief.

They say, uh, the government slight, you know, cites to slide 35, that's the uh put everything in writing and make sure you copy legal on anything related to this deal, right. Then it says the slide immediately before slide 35 tells new employees what to do if they see a problem related to privacy. They should. And And then it's redacted. Slide right, 35 then provides legitimate guidance to employees on how to protect their communications to in-house counsel requesting privacy related legal advice.

0:50:22 Andrew: One, direct the email to the lawyer, two, mark the email attorney client privileged, and three, ask the lawyer a question. Both of these cite to Plaintiff's Exhibit One, right, which is the section from the slide deck. Seal. I can't match this up against the slide deck because out of an abundance of caution to comply with probably their obligations regarding not disclosing confidential business information. This is a separate deal that Google and DOJ have entered into, the government didn't file a redacted version of the document, they just said this is filed under seal. Arguably, in its reply brief, in order to respond, the government can say, oh yeah, well withheld this out of an abundance of caution due to our production agreement with Google, but Google referred to it in an unredacted form in a public document. So here is the slide deck, I'm, I'm going to be looking for that.

0:51:19 Andrew: I promise you the lawyers working for the DOJ will recognize that when the citation is to their own exhibit, they're going to go back and look and go, wait a minute, they're quoting from the slides that they told us that we had to withhold as business confidential. So that's one of the big things I'm looking for. Then Google tries to respond to one of the slides that says any written communication regarding revenue sharing, right, which is at the core of the lawsuit, should include legal, then the names are redacted, and request guidance, mark content as confidential, attorney client privilege. And again, the argument here is, well, you know, if you just read it in context, it is just appropriately, appropriately reminding employees to direct questions about the revised agreement contractual terms to the responsible in-house counsel and keep them informed during the negotiations.

0:52:10 Andrew: Since in- House counsel would have to approve final negotiated agreements, it made sense to involve them in relevant internal communications about the agreements. The DOJ's response to all of this is going to be, we can quibble about context all day long. What's important is, how did Google employees respond to this direction? Did they respond the way Google said it intended for them to do so in its in its opposition? No, they responded by over and over again, putting pretextual claims and questions and not caring if those ever got followed up. The next argument Google makes is really, really not good. They say they

0:52:47 Thomas: That one sounded really not good. So is this one even worse?

0:52:50 Andrew: Say produced all these documents. It looked like they attached documents to their motion. And how do you think they got those documents? They got them from us. That has a little bit of surface level plausibility until you begin to scrape at it at all. Remember, DOJ's argument was we had to pull teeth. We started, we looked at your privilege log, and there were tens of thousands of entries that looked ridiculous. And we had to go back and ask you to re-review them. And again, I just want to say from my experience, that process is not a common process, even in coat factory litigation. Right. It is rare to reclassify thousands of documents that were initially withheld as privileged. Usually, your arguments are over refusal to produce certain documents that are non-privileged under some other claim, right?

0:53:45 Andrew: Relevance, burden, whatever. I'm not saying that this doesn't happen, but I am saying that the court is going to rely on its own experience and say, yeah, re-reviewing and reclassifying documents on the basis of privilege is not a typical part of the discovery process. Says. Google then also says on page 13, a thing that just mathematically seems not to be true. They say, Google produced the vast majority of these emails in its initial productions before any challenges by plaintiffs or re-review.

I'm going to then read you Google's own arguments, which do not seem to bear those out. So then they say, look, this was a huge huge uh document production, like it goes over 15 years, uh, there were 120 different custodians, that means sources of individuals that from which these documents uh were produced uh to To date Google has produced more than 4.5 million documents to plaintiffs. I think, in fact, I think I said earlier 4.5 million pages. This is more than that, right, like this is 4.5 million documents, and documents can be multiple pages long. We've had a lot of lawyers working on this. A production of this magnitude triggered a large and complex privilege review that resulted in a privilege log with more than 1,000 in-house attorneys listed, um,

0:54:43 Thomas: Right.

0:54:59 Thomas: Jeez. Well, but what is that an argument for? Is that just covering like bad faith component of it?

0:55:05 Andrew: That is exactly right. Basically what they're saying is you know, you should expect that this, you know, that a lot things are going to fall through the cracks, right? There's a huge document production, and then they describe the process. They say a large team of trained attorneys, often exceeding more than 100 attorneys at any given time. And yup, as somebody who's done document review, that's true. Reviewed documents for privilege during the investigative and litigating stages. Google trained reviewers not to base privilege determinations on the mere presence of attorneys on privileged and confidential markings. That is true, but again, I want to tell you, as a baby lawyer in a coat factory firm, when I did the very first review I ever did was a privilege review for the Exxon Mobil merger.

I've talked about my experience with that case a lot. And we got hour long lecture. So the way in which privilege review works in these cases, and large firms love them, because, right, it's a way to give first and second and third year your associates who don't really know much of anything something to do, right that is, you stick them in the basement, they can do doc review, uh, they can bill out huge uh volumes of hours even if there aren't, you know, real cases that need them. You can always pad your hours requirement by going down to the basement, pulling up a couple boxes, and and contributing to I

0:55:07 Thomas: Okay. Jeez. Yeah. Boy, being a lawyer sounds awesome.

0:56:28 Andrew: That. Coat factory law sucks, man. I hope I have not been misleading

0:56:32 Thomas: You should get out of it, Andrew, and start a podcast.

0:56:37 Andrew: On that score. So you have your youngest attorneys at the firm with very, very little training who are just rotely in a basement for hours at a time reviewing documents, right? That's the way it works. To date, I'm going back to Google's description, outside counsel and contract attorneys under outside counsel supervision. Oh I should add, that's another part of the process. While you as the first or second year associate go down and review for four or five hours at a clip while still doing the rest of your real law work with the firm, there will also be contract attorneys, right? Right. People who are hired from attorney law firms, right, like on a temporary basis who do nothing but the doc review. So it's there's always a way of the firm being like, see, at least you're not, a you contract attorney doing only doc review. You get, You get to also, you know, research memoranda. So is that, like, level of, there's always somebody on the rung below you

0:57:30 Thomas: Yeah.

0:57:40 Thomas: I mean, just for morale's sake, put it somewhere other than the basement. Couldn't it be like, hey, go to the penthouse office and review the documents just to make life a little nicer for these poor, overworked lawyers?

0:57:51 Andrew: So so they actually had, I remember this, for the ExxonMobil review that was mostly done on the seventh floor rather than the basement. And it was done in this huge conference room, which otherwise would have been super nice, except that at about thirty in the afternoon when the sun was moving into that, it would shine right in through the windows and the interior of the conference room would heat up to like 90 degrees such that the lawyers in there got together, we got manila folders, stood up on ladders and like pasted manila folders to the windows to block the sun from coming in and baking us alive in the conference room. So yeah. Be careful for what you asked for, Thomas, cause you just might get it. It was like, take us out of this dimly lit basement. All right here. Oh, you want Sunday here. Here you go, son.

0:58:14 Thomas: Oh, God. Oh, no.

0:58:48 Andrew: Date, outside counsel and contract attorneys have devoted more than twenty one thousand hours to privilege related work in this case. So do that math in your head for a minute. You know, probably big law firms multiply that by at least five hundred dollars an hour, so you know yeah, if you get ten and a half million dollars from just the document review, like, yeah, that's pretty good income for the firm. Yeah.

0:59:05 Thomas: So Yeah

0:59:14 Andrew: So when I say that, you know, coat factory law is the biggest problem in America, that's what I mean. Google, right? Produced its first privilege log in April 2021. Now, again, this is Google's own description of the process. On June 4th, plaintiffs asked Google to re-review 81,000 logged communications in which an attorney appeared only in the CC line. That is a super quick turnaround, right? It's a two-month turnaround while they're doing all sorts of stuff and a very specific inquiry about a very, very large number of documents, right? Remember, we're only talking about 140,000 documents total that the DOJ wants produced now, and they flagged 80,000 of them within two months of the first privilege log. After meet and confer, Google agreed in August 2021 to re-review the subset of those emails in which the attorney remained on the CC line throughout the email chain.

0:59:20 Thomas: Right.

1:00:07 Andrew: At that time, plaintiffs did not raise any objection to logged emails with attorneys on line two to which the attorney did not respond. This language appears multiple times throughout Google's recitation of the facts and remember that pin I told you to put in. Background, it is so obviously pretextual, right, because the DOJ admitted, yeah, when we looked at the privilege log, we were trying to figure out what the hell was going on and our theory of what you were doing developed over time. Did we know, two months in, that you had these PowerPoint presentations telling employees, no, we didn't know that, we've now, we've figured that out, but but to say, I can't believe you didn't and figure it out immediately, our secret scheme is really a terrible, terrible argument.

1:00:35 Thomas: Yeah.

1:00:52 Thomas: So Google was trying to say, like, look, if you had a problem with our secret scheme, you should have said something before you discovered we had a secret scheme.

1:00:52 Andrew: Exactly. That is exactly what this argument amounts to. Then it goes through the rest of the process, right, back and forth asking for re-review, it keeps getting, the the requests from DOJ keep getting more specific, and then it says Google agreed to re-preview the subset of communication where the attorney remained in the CC line throughout the email chain. We completed that, that review, and the resulting documents by mid-January of 2022. And then it says, on January 25, 2022, with the classic lawyer of, like, nearly half a year after Google first agreed to re-review the subset of emails, plaintiffs demanded that Google re-preview all previously identified emails with an attorney on the CC line, whether or not the attorney responded.

And then a month after that, plaintiff's changed their demand to the current one, which is that Google produce all of the silent attorney stuff. I don't think any judge will have any problems reading that and going, yeah, this is just a party discovering your secret during litigation. And in fact, the DOJ responded amazingly quickly, you completed a review and they got back to you two weeks later regarding a review of tens of thousands of documents. So Will sort of cut to the chase, I'm going to skip. I will tell you that on page 29 is the list of reasons that attorneys might not respond to a work

1:01:00 Thomas: Yeah.

1:02:22 Andrew: Product email.

1:02:22 Thomas: Is this where they used my excuse use?

1:02:24 Andrew: They say, one, the attorney may respond in some other manner, for example, by phone, in person, or in a meeting. Two, the employee may be responding to a separate request from the attorney for information necessary to provide legal advice to others in the organization. Three, the email may not require an immediate response. Four, the employee may be conveying the attorney's legal advice or request for legal advice to other employees with a need to know and copying the attorney for awareness, which again, just factually doesn't match up with what the email say. And five, the employer and his colleagues may have collected the information in the email in anticipation of litigation and are providing that to the employee. And again, it just doesn't track with what the emails actually say. So my thought here to bring this discussion to a close is that this is really going to depend on how the court evaluates the overbreadth problem, the right?

1:02:29 Thomas: Yeah.

1:03:18 Andrew: Department of Justice was remarkably candid. They say, if you order us, if, if your order Google to produce all of the silent attorney documents, it quote, may result in the production of documents that are legitimately privileged, end of quote, but that there's no better alternative. That gives the court an opening to order some kind of lesser review. Now, talking about Eastman, are they going to review this in camera? Hell no. There are 140,000 documents. The court has no interest. They don't get to bill associates out at $500 to $800 an hour to do that. They're not interested interested in reviewing 140,000 documents. The court will craft some kind of relief here. But how far they go versus how far they err on the side of protecting legitimate privilege. I want to keep my eyes open for that. I think we're going to be learning a lot about this case within the next month. So I wanted to put it on your radar. I thought it was a great discussion of a lot of privileged issues. And there you go.

1:03:52 Thomas: Yeah.

1:04:14 Thomas: I'm just curious. I mean, there's still sanctions to talk about too. I wonder if the bar is going to be really confused when they see a sanctions motion and it's not, know, Sidney Powell or Lin Wood. They're like, whoa, whoa. Oh my God. What is the, oh, okay.

1:04:28 Andrew: Yeah, it's a good illustration that that sanctions don't have to include, and again, the DOJ, I think, remarkably restrained here, they right say we want as sanctions to order you to produce those documents, right, we don't want the court to draw an adverse inference, to rule against you, you as a matter of course, to impose fines, to disbar the lawyers, we're not saying do any of that, we're just saying you improperly withheld a lot of documents and now it's time to give them to us. And that is, I think, a really good illustration of one of the principles I've talked about all the way back since episode one, right, which is, you don't, you want to treat the court with respect. You do not want to overplay your hand. You do not want to be seen as being, you an, unfair or, you know, overreaching or any of that. And and this is a really good illustration of that.

1:05:15 Thomas: Wait. So did they not ask for sanctions? Did I mishear you?

1:05:17 Andrew: That that the sanction, the remedy that they want for the sanctions is just give us the documents, that's it, yeah it

1:05:22 Thomas: Oh, that, wait, how is that sanctions? I I don't understand.

1:05:25 Andrew: Is well, because it is sanctions of, uh, the court has the inherent power to say you have engaged in an improper process and therefore we are going to craft a remedy that is appropriate to your violation, it would be the part that would be covered by the sanctions aspect, would be, and if by ordering you to produce all the silent attorney emails you accidentally reveal some attorney client privilege documents, well, it's sanctions, that's that's what you get for screwing up the process, right? So that's why it's being requested as a sanctions motion, not

1:05:36 Thomas: Oh, okay. Right. But so then nobody's really going to get punished for this obviously bad faith policy of trying to get privilege when you didn't actually have it.

1:06:05 Andrew: Until the DOJ gets those 140,000 documents then

1:06:09 Thomas: Oh, and then maybe they might be like, wow, this is some bullshit.

1:06:10 Andrew: Yeah. That's exactly right, right, yep.

1:06:12 Thomas: Okay, cool. Gotcha. All right, well, we will keep an eye on that as always.

1:06:13 Andrew: Exactly right so this

1:06:17 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:06:23 Thomas: And now it's time for T3BE. Thomas tries to be ethical. I think we're close to the last one of these question

1:06:29 Andrew: Is question 10, this is the last

1:06:30 Thomas: 10, here we go, already guaranteed a B minus uh if I answer this one right, A minus,

1:06:33 Andrew: Thomas yeah yeah An attorney represented a client in a breach of contract action against the client's former business partner. During the representation, the client presented the attorney with incontrovertible proof that the former partner had committed perjury in unrelated litigation several years earlier. The prior litigation had been resolved in the partner's favor. Neither the attorney nor the client had been involved in any way in the prior litigation. However, at the time of the prior mitigation, the client and the former partner had a close personal and business relationship.

The attorney believed that it would be detrimental to the client's best interests to reveal the former partner's perjury because the court might draw a negative inference about the client from the former partner's behavior. As a result, the attorney did not disclose the former partner's prior perjure to the court. Was the attorney's conduct proper? A. Yes, because the attorney believed that the disclosure would be detrimental to the client's best interests. B, yes, because neither the client nor the attorney had been involved in any way in the prior litigation. C, no, because the attorney possessed knowledge that the former partner had perpetrated fraud on a tribunal. Or

1:07:23 Thomas: Is A good Final boss of ethics, yeah. Huh.

1:07:49 Thomas: Privileged.

1:07:50 Andrew: D, no, because the information regarding the prior perjury was not privileged.

1:07:55 Thomas: Geez. Yeah, this is tough. So it's like we got an attorney and a client. The client is suing essentially the former business partner. The client tells his attorney, hey, I know about this former business business partner, I know they committed perjury in unrelated things several years earlier. But since the client and the business partner were close then, it would reflect poorly on the client to have that revealed, it seems like. Because it just says, because it doesn't really implicate the client. It just says, however, at the time of the prior litigation, the client and the former partner had had a close personal and business relationship, which is interesting. It's like, I don't know if that really, you know, if I have a close business and personal relationship with somebody and they commit perjury in something that's, it that says, neither the attorney nor the client had been involved in the prior litigation.

1:08:49 Thomas: I don't even see how that reflects poorly on me. Does it? The attorney believed that it would be detrimental to the client's best interest to reveal the former partner's perjury because the court might draw negative inferences about the client. That all seems weird, but I wonder if for the question's purposes, if that doesn't, like if we're just supposed to take it as a given, all that matters is the attorney thinks that it's in the client's best interest not to reveal this information. Information. Okay. Well, let's see. Can you keep perjury a secret when it might benefit your client when it's something you weren't involved in? I don't know. Let's see, A, yes, yes because the attorney believed that the disclosure would be detrimental to the client's best interest. So, okay. Is that the rule, that that you can, because, you know, because you weren't involved in it, you don't have to disclose it because it's in the client's best interest.

1:09:41 Thomas: Or B, yes, because neither the client nor the attorney had been involved in any way in the prior litigation. You know, if I'm going with a yes, I actually think I like B over A, if I were going with the yes. Because B seems like the more important thing. The fact that they weren't involved in any way in that litigation, that seems like the more important factor. Because if you take A and you're like, what if it's a perjury that like you committed and then you're like, well, but it's in the client's best interest. I don't think that would be proper. I think it's, think it's the fact that they weren'T involved. So I'd take B over A if I was going, yes, let's look at the no answers. C, no, because the attorney possessed knowledge that the former partner had perpetrated a fraud on a tribunal. So that's the straightforward, the tribunal thing is weird, but I guess I just assumed that's lawyer language.

1:10:27 Thomas: I don't really know why it's phrased that way, but whatever. I guess that's a straightforward, no nonsense, no answer. Or D, no because the information regarding the prior perjury was not privileged. I don't think it's D because I don't think perjury would ever be privileged because it's perjury. I mean, I guess that's saying like, maybe the key is revealing information that your client told you, the fact that the client told the lawyer that, and this answer is like, he, he needed to reveal it because that was not privileged, and I don't really think that's the the question here. Now maybe, but I think anything that's, know, misconduct that you would have to report, I think anything like that would never be privileged because it's a crime, I thought, and that crimes, crimes aren't privileged. So D, for that reason, I don't think I like D.

1:11:14 Thomas: So I think I'm between B or C. Just, all right. I'm not a hundred percent certain, but I think I'm going to stick with the horse that brung me, which is if you are an attorney and you learn that someone has perpetrated a fraud on, like, on courts and attorneys, I feel like code of conduct would be, you got to report that. Um, I think B is a strong second answer, in case it's like, well, you weren't involved, so you don't actually have the obligation to, uh, to report that. I'm just going to go with C, and I'll, if I, I'm trying to be over the top ethical. And if C means that I end up with a B minus because I was too ethical on this question, then by god, I'll take it. So, C, final answer, B second chance, ethicist.

1:11:59 Andrew: I like, I like, there's no effort to poison the well there against any other answers. No, uh, If you want to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guests and your reasons therefore. We will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:12:17 Clip: And thank you, Let's go!

1:12:19 Thomas: And Now it's time to thank our new patrons at patreon.com/law enjoying the ad-free episodes, the early episodes. Let's, and we're close to the end of the month, which means it's almost live Q&A time. Cannot wait, they're always so much fun. We will be hosting that live Q&A on YouTube on March 30th, Wednesday. That is at 4 p.m. Pacific, 7 p.m. Eastern. Andrew will have already posted the question thread, and that means that you fine, fine patrons can jump on, ask your questions, as always, and please vote on the questions you want to hear answered. That helps me out a ton, tells me what you guys want to here, and really looking forward to that. Everybody, of course, can come to that YouTube Q&A, not just patrons. Patrons get to ask the questions, but everybody can come watch on YouTube. So that is, once again, Wednesday, the 30th, 4 p.m.

1:13:06 Thomas: Pacific, 7 p.m. Eastern. And now let's thank our new patrons who can enjoy the privilege of asking and voting on questions on that Q&A. Thank you to Nile Lohse, Chris Cart. If I whacked Trump when I met him in 98, I'd probably be free by now. Regret Ipsa Loquitur. Janet Cowell. Yeah, no, I'm mad at you too for not doing that. Happy birthday, Joe. I hope you listen to the Patreon shout outs. Oh, nice. Hazel, jvschwarz, Kayla L Penny, Jeff Konopka, Theodore Scheungrab, and Arcane. Your turn, Andrew.

1:13:43 Andrew: And A big thank you to Melissa Donaldson, to Is ahead of you in the que, it's just, I, I sincerely hope that winds up being a Hall of Fame patron, because that'll just be fantastic, to Ariadne Jewell, to I'm a month behind in episodes, so you're speaking to me from the future, indeed, Rachel Belliveau, Becca P, liberals do be getting into the second Uber after finding out the first driver is a murderer, good, great, uh, call back to your analogy there, to Madelyn Jirasek, Ryan, to Ryan Enbom, Daniel Ahn, I believe that's a returning patron, and love this one, to The Ghost of Sidney Powell's Law License.

1:14:24 Thomas: All right. Thanks so much, new patrons. Patreon.com/law. Sign up, everybody. And that's our show. Thanks so mucho. For joining us. Thanks, Andrew, for the deep dive, as always. And we'll see you folks on Tuesday.

1:14:36 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:15:10 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.