Mississippi Attorney General Jim Hood Insists His Emails With The MPAA Are Super Secret

from the how's-that-working-for-you? dept

Last we had checked in on the ongoing legal wrangling between Google and Mississippi Attorney General Jim Hood, a court had ruled pretty strongly against Hood, accusing him of acting in “bad faith,” for “the purpose of harassing” Google in violation of its First Amendment rights. Checking back in on the case to see what’s been going on, it appears that things have continued to get more and more heated. A little while after that ruling slamming Hood, Wingate ordered Hood to provide a bunch of information to Google as part of the discovery process for the case — including, bizarrely, responses to Techdirt’s FOIA request, which we had declined to continue after Hood’s office demanded over $2,000 and made it clear that they still likely wouldn’t give us anything. However, Judge Wingate thought that Hood’s office should turn that info over to Google:

Any documents already gathered in connection with the Techdirt Mississippi Public Records Act request that are responsive to Google?s requests.

But, more importantly, Judge Wingate ordered Hood to turn over the documents that the MPAA/movie studios and their lawyers at Jenner & Block had written for Hood, as well as emails with the MPAA’s government affairs boss, Vans Stevenson:

Any draft subpoenas provided to the Attorney General by the third parties identified in Google?s request.

Attorney General Hood?s November 13, 2013 email to Vans Stevenson, and any replies or responses thereto;

Attorney General Hood?s August 28, 2014 letter to the Attorneys General in all 50 states regarding setting up a working group;

Less than two weeks after that, Google told the court that Hood was refusing to turn over a bunch of that stuff, claiming that it was “privileged” material:

The Attorney General has withheld most of the documents called for by the Court?s order. But there is no valid basis to assert privilege. Most of the documents in question were prepared by third parties lobbying the Attorney General to take action against Google. Neither the attorney-client privilege nor the work product doctrine permits public officials to shield such interactions from scrutiny. The privilege log provided by the Attorney General confirms that there is no basis to withhold the documents.

According to Google’s filing:

On April 15, the Attorney General served his responses and objections for the five priority document categories, along with a privilege log and 65 pages of heavily redacted documents…. He produced no documents at all within the fifth category specified by the Court, later explaining that while documents had been ?identified? in relation to the Techdirt Mississippi Public Records Act request, none had been ?gathered.? He also refused to produce much of the responsive material in his possession, claiming that the documents are protected by the attorney-client privilege, the work product doctrine, the common interest doctrine, or some combination thereof.

And, Google points out that the idea that Hood has attorney-client privilege over this material makes no sense, as he does not have such a relationship with the people in question:

It also concedes that the Attorney General does not know who drafted many of the withheld documents and instead states, ?on information and belief,? that they ?were prepared by or at the direction of? one of two or three named lawyers in private practice, at the law firms Jenner & Block LLP (?Jenner?), Orrick, Herrington & Sutcliffe LLP (?Orrick?), and SNR Denton US LLP (?Denton?)…. The Attorney General confirmed that he had no attorney-client relationship with these firms. Published accounts indicate that, in connection with lobbying activities, Orrick represents Microsoft and Jenner represents the MPAA.

There’s a lot more in that filing that absolutely destroys the arguments that Hood is making as to how these documents, prepared by the MPAA’s lawyers, could possibly be privileged material, blocked from discovery.

A week later, Hood responded to Google’s filing seemingly spending about half of the space simply reiterating one of his misguided rants about how evil Google must be — none of which seems even remotely relevant to the question at hand, concerning whether or not Hood needs to produce these documents, including the emails from the MPAA and its lawyers, as they plotted to use Hood in their plan to take down Google, a company they don’t like. After that, it basically just repeats “attorney-client privilege” and “work product” as frequently as possible, insisting that revealing any of this to Google would completely undermine all that is good and holy by revealing to Google what Hood and his staff were thinking. That, of course, leaves out the fact that it wasn’t what Hood was thinking, but rather what the MPAA — an organization that has made it clear it wants to harm Google — was thinking in terms of how it could use Hood’s office to that end.

Allowing Google access to these documents and communications would reveal the nature of the Attorney General?s mental impressions and strategy regarding future litigation against Google.

Or, you know, the MPAA’s “mental impressions and strategy” which apparently include funding/hiring one of Hood’s closest friends (who Hood himself then hired to help with the subpoenas to Google), Mike Moore (the previous Attorney General who helped get Hood elected). The whole reason why the judge ordered Hood to turn this over was to find out about those “impressions and strategy,” as Judge Wingate believed that those “impressions and strategy” show a “bad faith” plan to attack Google in violation of the First Amendment. Hiding behind a bogus attorney-client privilege claim (when Hood has no such relationship here) is incredibly weak.

Finally, earlier this month, Google responded again and laid out the situation in a fairly straightforward manner:

The Attorney General served the 79-page subpoena at the heart of this case after sustained lobbying from the MPAA. The Court has found that Google is likely to succeed on the merits of its claims, including its claim that the Attorney General conducted his investigation in bad faith. The Attorney General is now trying to throw a veil of secrecy over his interactions with the MPAA and other lobbyists during his investigation, refusing to produce the draft subpoenas the lobbyists wrote, and the multiple policy memos (with titles like ?Google must change its behavior?) that the lobbyists sent him. He asserts, for example, that documents created by the MPAA?s lawyers are somehow his work product, and thus beyond the scope of discovery absent a showing of substantial need, simply because he read them. That is flatly wrong. The work product doctrine exists to shield from discovery an attorney?s thoughts and impressions developed in preparation for litigation. It does not protect a trade association?s communications with a government official, aimed at inducing the official to pressure a business rival.

It further explains how all those chants of “attorney-client privilege” and “work product” make no sense at all:

  • The draft subpoenas, CIDs, and white papers do not constitute the work product of the Attorney General because they were not created by his counsel or agent, but instead by private third-parties seeking to influence his official conduct.
  • The same documents do not constitute the work product of private counsel because their clients (the MPAA, Microsoft, and others) were not anticipating litigation as a party. And any protection was waived when the documents were provided to the Attorney General to encourage an attack.
  • The letter to attorneys general is not work product because the unredacted portion of the document makes clear its primary purpose was to form a working group to induce Google to change its policies, not to prepare for litigation. And the common interest doctrine does not include unsolicited invitations to join such an effort.
  • Oh, and the Google filing also highlights the fact that both the MPAA and Hood appeared to employ Mike Moore separately to work on this same project, and this also further undermines the attempts to keep these communications a secret:

    The record also suggests that any privilege was waived by the Mike Moore Law Firm?s parallel representation of the Attorney General and a private lobbying group, as well as Mr. Moore?s repeated disclosures of confidential information to outside interests.

    This back and forth is kind of fascinating. The Judge has already made it quite clear that he’s not buying Hood’s story, and it seems pretty obvious from the Sony leaks and deeper reporting from the NY Times last year, that Hood’s fishing expedition was based almost entirely on the MPAA’s big plan to hamstring Google just because the MPAA really, really doesn’t like Google. That Hood would use his office as a state Attorney General to assist in such an action does not speak very well of Hood. That he’s now scrambling to hide the details of his relationship with the MPAA only serves to call more attention to that relationship.

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    Comments on “Mississippi Attorney General Jim Hood Insists His Emails With The MPAA Are Super Secret”

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    Ninja (profile) says:

    I started wondering how the guy is still employed as AG but the way the judicial process is moving it seems real punishment may not be some sort of myth or something.

    There’s evidence of wrongdoing here and Hood desperation to hide stuff is only making it worse. I do hope that if all the evidence holds he is thoroughly punished. And the MAFIAA investigated.

    wallow-T says:

    Re: Re:

    “I started wondering how the guy is still employed as AG…”

    The Attorney General of Mississippi is an elected office. Theoretically he could be impeached by a legislature, but in real life, that isn’t going to happen in this case. Mr. Hood serves at the pleasure of the voters, and (my view) it is unlikely that a significant number of Mississippi voters would use this case to force him out of office in the next election.

    Socrates says:

    Re: The MAFIAA is well connected

    The MAFIAA is so well connected that the US president disgraced himself to shield Attorney General Jim Hood.

    Even claiming utterly crazy stuff like North Korea being responsible for the Sony “hacks”. It does not even fit the timeline. As the lies were allowed to stand it shames all the western democracies, and makes any claims we make suspect.

    The attempts to cloud the important information in the Sony leaks risked making Asia unstable. If someone doesn’t believe wars can begin for bullshit reasons, read about a certain shot in Sarajevo. Or the Gulf of Tonkin incidents where US fired first in the first and the second did not even happen. I’m still baffled why the US regime risked this to save the monopolists from having to acquire another bent attorney general.

    Would they sacrifice him now after shaming us all? Or do they mock the US Constitution til the end?

    David says:

    Re: Re:

    No, he is the client of the MPAA. He is outsourcing his job as he is apparently unfit to do what he is paid for by the government.

    And why wouldn’t he? Not only does the MPAA do his job for him but they actually pay him to be allowed to do his work.

    What’s not to love? He can be both lazy and sleazy.

    DannyB (profile) says:

    Why does Hollywood hate Google?

    I can’t, right off the top of my head, think of a reason why Hollywood hates Google so much. (Other than their general hatred of technology and progress. Or their propensity to be irrational.)

    How does Google providing a search engine hurt Hollywood?

    Hasn’t YouTube bent over backwards to make it easy, in fact way too easy, for Hollywood to get content removed from YouTube?

    There might be a rational reason for the hate. But I am not seeing it.

    jupiterkansas (profile) says:

    Re: Why does Hollywood hate Google?

    It’s because Google makes so much more money than they do, and because they think Google is the internet (or that the internet is only used to watch their movies or listen to music). They either want the government to force Google to share its income with them, and/or they want to be able to dictate search results in their favor.

    It’s not about hate. They simply want money and control.

    Anonymous Coward says:

    Re: Why does Hollywood hate Google?

    There might be a rational reason for the hate. But I am not seeing it.

    Anybody with the desire and money can watch every new Hollywood release, and still have time for a job, watch some TV and read some books. Nobody could even read the title of every Youtube release, even reading 24/7/365. Hollywood looks at those stats and realizes that they cannot compete in the long term, and so have to destroy Google, and then the other self publication sites.

    DannyB (profile) says:

    Re: Re: Why does Hollywood hate Google?

    OK, I take your point.

    But why would anyone want to watch any, let alone every new Hollywood release.

    YouTube has so much more to offer. I’m learning some Hebrew right now (on YouTube). I don’t know that I have the discipline to stick with it. But so far I know the alphabet (or aleph-bet) and can pronounce and write them. (I decided not to learn a new programming language this year. This is more challenging.)

    re-release, remake, sequel, sequel of old remake, etc.

    jupiterkansas (profile) says:

    Re: Re: Re: Why does Hollywood hate Google?

    Hollywood, radio, and television were largely in control of the nation’s entertainment for more than 100 years before the internet, and that kind of control is not easily let go (not to mention the deep deep pockets of cash that it generated).

    They are using their money and influence to stop something that gives everyone the same powers they have enjoyed for a century. The real problem is they didn’t grab control of the internet from the start (and they could have through regulations) because the internet was thought of as a communications platform, not an entertainment platform.

    DannyB (profile) says:

    Re: Re: Re:2 Why does Hollywood hate Google?

    The internet was RIGHTLY thought of as a communications platform, not an entertainment platform. Because it is.

    The fact that communications can be used for entertainment is simply one use for communications.

    That general statement is true of any communications technology. Scratchings on cave walls. Printing press. Photographic film. Moving pictures. Audio recordings. Radio. Television. And the intarwebtubes.

    Anonymous Coward says:

    Re: Why does Hollywood hate Google?

    Google owns YouTube and they haven’t bent enough yet for Hollywood. Besides, Google is actually looking at DMCA requests and they haven’t budged enough on search manipulation to prevent piracy. At the same time Google owns an ad company who benefits from both Youtube and the search and those money aren’t shared to the liking of Hollywood. Even worse, Google has an openness policy Hollywood sees as harrassment since it exposes a lot of their dirty laundry (Every business has such. Discretion is a mark of honour etc.).

    So in a lot of ways Google is seen as the main conspirator against copyright and other causes of disruption to their mighty fine business.

    For now, the conspiracy theories are mostly unsubstantiated and not as rationally founded as it is an emotional lashing out in frustration, because of the changes brought to their environment and the negative effect the new distribution models have on their profits.

    Anonymous Coward says:

    Re: Re: The copyright monopoly is malignant

    So in a lot of ways Google is seen as the main conspirator against copyright and other causes of disruption to their mighty fine business.

    And they would be right.

    Their mighty fine business depends on depriving creators from funding until the creator signs away the copyright. Being a parasite on creators requires at least one of:
    1) Controlling exposure
    2) Controlling distribution
    3) Controlling funding
    4) Forcing creators into contracts

    Search engines enables citizens to find information. That gives a lot of exposure for free. The internet gives distribution for free for anyone who wants to use it. Funding is better managed by someone who doesn’t take 90%+ of your profit (as the monopolists does). And Google expose how bad the contracts are because Google enables creators to find other creators experiences. There is nothing Google can do to appease the copyright monopoly! The copyright monopoly is anti freedom. The copyright monopoly is anti knowledge.

    Google opposition is the copyright monopoly, not copyright in itself. If creators stopped signing over their rights to the monopolist, the copyright monopolist would no longer be the monopolist because it would no longer get new copyrights. To the parasite this means start doing something useful or be extinct!

    The parasitic copyright monopoly decided to not change and use any means to attack Google!

    PaulT (profile) says:

    Re: Why does Hollywood hate Google?

    “How does Google providing a search engine hurt Hollywood?”

    They have the audacity to return what the consumer is actually looking for, not what Hollywood wants it to buy. This is problematic enough for them when it exposes competing outlets, better prices and how much people get screwed by region. but if someone searches for free stuff, they might see free stuff!

    “Hasn’t YouTube bent over backwards to make it easy, in fact way too easy, for Hollywood to get content removed from YouTube?”

    Yes, to the point where independent musicians and filmmakers routinely get their own work removed due to false claims by the people they hire. But, this has neither led to magically higher revenue for the studios not the magic removal of all piracy, so they’re bad for not achieving impossible miracles.

    “There might be a rational reason for the hate”

    They’re a big, cash rich target, and it’s easier for them to demand that Google “do something” than fix the problems themselves – the fact that they have ignorant politicians in their pocket who believe their propoganda doesn’t hurt either.

    Anonymous Coward says:

    “claiming that it was “privileged” material: “

    Translation: Embarrassing information.

    Lets get something very clear. Almost any time the government goes after a whistle blower or proclaims something to be privileged or secretive or national security it’s because it’s something that will embarrass the government. They don’t care about serving the public interest, public safety, the safety of anyone involved, or ensuring that the bad guys don’t escape justice. They are a lot more concerned about their reputation than anything and ensuring that they get away with their unjust behavior. History has shown this time and time again with the nature of the information they tend to hide and the types of whistle blowers they tend to go after that it has a whole lot more to do with avoiding embarrassment than anything else.

    mcinsand (profile) says:

    Re: 'embarrassing information'

    Getting elected depends on being able to project some image of strength and the ability to think independently… as one would expect from a leader. Hood might have a tough time in his next run at office if these documents show publicly that he’s nothing more than a special interest’s spineless gelding.

    Anonymous Coward says:

    Re: Re: 'embarrassing information'

    Getting elected depends on being able to project some image of strength and the ability to think independently.

    It is much more dependent on belonging to the right party, when all but the most heinous crimes will be forgiven by enough of the public to get elected. In most place the right party is whichever one is traditionally elected, and in a few it is whichever of the major parties is most in favor at the time.

    Anonymous Coward says:

    I really don’t understand the legal process. The court had already ordered Hood to turn over this information. If he wanted to present arguments against turning over the documents, he should have done so at the time of the order. Since he didn’t, he is in contempt and no further arguments need to be provided before the court authorizes someone to walk into his office, punch him in the face, and retrieve the documents.

    Why is this not how it works?

    James Burkhardt (profile) says:

    Re: Re:

    Actually, having the government search for your files in a civil proceeding is not actually a desired outcome, big picture wise. However, he should be found in contempt. A contempt charge should have him put in jail until he (or his office) provide the documents, or alternatively the assumption can be made that the contents of the documents fully support the claims made by Google, and make a ruling against the AG in the case.

    Anonymous Coward says:

    Re: Re:

    This is not how it works.
    The judge says hand over these categories of documents. Due to the position that Hood is in some of the documents can be sensitive. In cases like that you hand over a log stating we found these documents, the documents that you cannot justify as privileged and a log stating per document the reason(s) you are not handing over the remainder.
    Hood is abusing this process.
    The best case he can hope for if he continues is that the judge rules he’ll review those in camera before handing them over to Google.

    Rich Kulawiec (profile) says:

    Never interrupt your enemy...

    …when he is making a mistake. (Napoleon)

    Ah, MPAA, so fixated on one search engine and so blissfully ignorant of the reality that Google, as massive and influential as it is, is unimportant and transient. It’s merely part of a progression and an evolution of technology and services: it will last for a time and then, in all probability, melt away or be merged into something else.

    So go right ahead, MPAA. Destroy Google, if you can. Show us that you failed to learn the lesson of Napster — that the dissolution of one company merely means opportunity for dozens of others. Sow the seeds of your own demise by clearing the competitive playing field of its dominant power and making sure that you face not one adversary, but hundreds. It will only hasten the inevitable — a future without you.

    DannyB (profile) says:

    Re: Never interrupt your enemy...

    Stealing* the Pirate Bay’s domain names will only result in TPB becoming decentralized. Others can already spin up their own instances of the server. Anywhere.

    This is going to be hilarious to watch as it happens.

    *Stealing is the correct word. Stealing is a more applicable to the taking domain names without compensation than the word would apply to mere copyright infringement.

    Disclaimer: I do not use TPB and never have. But I’m sure that won’t stop what’s its name.

    DannyB (profile) says:

    Re: Re: not one adversary, but hundreds

    By the time the MPAA realize that it should give customers value for a reasonable price, it will be too late for them.

    By the time the dinosaurs realize they should get out of the tarpit as soon as possible, it will be too late for them.

    Unskippable commercials that were irrelevant ten years ago and even less relevant today.

    Unskippable commercials for upcoming new releases that were released fifteen years ago and are nowhere to be seen today.

    FIB warnings that untruthfully misuse the FBI logo to frighten people with half truths and misstatements.

    Over valuing content when it comes to licensing it for streaming using new technology.

    Realizing that it is technology that would have saved them, and had always done so in the past.

    Anonymous Coward says:

    The Third Party rule in action.

    > … Any draft subpoenas provided to the Attorney General by the third parties identified in Google’s request.

    > Most of the documents in question were prepared by third parties lobbying the Attorney General…

    > … And any protection was waived when the documents were provided to the Attorney General to encourage an attack.

    Because these were data from a third party (and not part of attorney/client privilege), the third parties involved “do not have an expectation of privacy”.

    … despite, of course, the fact that they would indeed have an expectation of privacy.

    Anonymous Coward says:

    You missed the best part of Google’s reply brief. In footnote 8, they pulled a 4-year old quote from then-Assistant AG, now-MPAA lobbyist Tom Perrelli to support the generic proposition that Freedom of Information laws exist to provide transparency. Completely unnecessary, and there are infinitely more authoritative sources for that point. They did it just to take a shot at the other side’s hypocrisy. Fantastic.

    Anonymous Coward says:

    ‘Mississippi Attorney General Jim Hood Insists His Emails With The MPAA Are Super Secret’

    only because he and the MPAA are ‘super crapping themselves’ over the courts and the people finally finding out exactly what sort of thing this and other members of the Entertainment Industries do to get what they want and the bribes those outside of the industries but inside the legal framework will accept to help!! this all needs to be aired in open court! if the MPAA and/or others get to have the case, eventually, held in secret, it will be a travesty of justice, as it involves everyone!

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