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Comment by ykevinator2 | Hacker News Reader

I think I'm on googles side on this one. We can change the rule if we don't like it but it's more clever than anything abusive.

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It's not actually what the rule is, it's just Google's lame attempt at creating a loophole.

It's not even clever, criminals have used the same idea, starting in analog form, forever.

>it's just Google's lame attempt at creating a loophole.

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 that you stole the cookie while you were naked because they turn off the cameras when you're naked.

The loophole is how you hid and the crime is what was hidden.

Completely agreed, I should have used different wording.

It’s pretty clearly abusive and not under the scope of AC privilege. In fact multiple cases have resulted in companies with similar behavior being forced to turn over the material.

> not under the scope of AC privilege

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?

I think you’re missing the point. Privileged communication isn’t a free for all. The communication must actually be relevant to the legal representative, in their position as a legal representative. The alternative would be that you could have the company lawyer CC’d on every document and so claim privilege against any request.

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 communication must actually be relevant to the legal representative, in their position as a legal representative.

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.

If they can provide evidence of systematic abuse, and per the article there is apparently even documentation telling employees to misuse privilege to shield communication that is not legally protected.

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.

It can be simultaneously true that "everybody does it", that it's "clever", and that it's "abusive" and breaking the rules.

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.

If DoJ’s description is correct (and unless they are lying about the concrete evidentiary basis, including the specific slides, etc., included in the memorandum in support of the motion, there doesn't seem to be any way it could not be), Google’s behavior flagrantly violates the existing rules and no change is necessary to exclude it.

Noooope. If what the DoJ is saying is true, then it’s pretty clearly abuse of privilege. I’m stunned if G did this, because other employers have made a point of saying not to do this (also I would be questioning why their own lawyers allowed it?)

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.

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