Hollywood Resists Revealing Details Of Its Cozy Relationship With Mississippi AG Jim Hood, But Glimpses Come Out
from the buddy-buddy dept
The whole legal fight between Google and Mississippi Attorney General Jim Hood has been pretty nasty from the very beginning, but it’s been getting even nastier as it drags on. Even in many high stakes lawsuits involving large companies and the government, the filings tend to remain somewhat bland and low key. But this particular fight seems personal to many of the parties involved (going beyond just Google and Jim Hood to the MPAA and the studios it represents). If you don’t recall, for a few years now, Hood has been bizarrely blaming Google for the fact that people do bad stuff online, rather than understanding that a search engine isn’t responsible for the content that it finds. The reasons for Hood’s ignorance became a lot more clear after the Sony Hack, when internal emails revealed that Hood was acting as a puppet for the MPAA whose hand was shoved so far up Hood’s behind that it was a bit unseemly.
The MPAA’s lawyers ran the entirety of Hood’s “investigation.” Those lawyers actually wrote the subpoena that Hood sent Google (Hood merely added the opening and his signature). The studios paid for the investigation, and the program itself was explicitly designed not to protect anyone online but to bring down Google (dubbed “Goliath” in the documents). The MPAA hired Hood’s best friend, mentor and predecessor to lobby Hood on this… and (coincidentally, I’m sure), Hood hired the very same guy, Mike Moore, to help with the investigation — which should raise serious conflict of interest questions. As these details were revealed, Hood launched into a bizarre anti-Google rant that was both ill-informed and often flat out incorrect. He insisted perfectly legal things (a news site about dark markets) were completely illegal, he blamed Google for not doing things it actually had done, and he couldn’t seem to figure out the first thing about how the internet — or the First Amendment — actually work.
With this new info in hand, Google went to court to argue that Hood’s demands were illegal, and a clear attempt of abusing the power of his office to attack a business. The courts have overwhelmingly sided with Google up to this point — putting his demands (written by the MPAA) on hold and saying that it was clear Hood unconstitutionally acted in bad faith in violation of the First Amendment.
The judge also ordered Hood to cough up his communications with the MPAA — something Hood was refusing to do the last time we checked in on this case about two months ago.
Since then, there has been a flurry of activity in multiple courts as Google, Hood and the MPAA fight it out in increasingly emotional terms. As Hood tried to resist, Google opened up another front in this and sent subpoenas to the Hollywood studios directly for those same communications and more. The studios have resisted strongly, claiming that their own documents are unrelated and they’re not a party to the lawsuit. Google, however, has pointed out that since the MPAA was running the government’s investigation almost entirely, it seems reasonable to argue that that information should be disclosed:
Each Subpoenaed Party asserts “work product protection,” but none can identify any litigation they contemplated at the time the requested documents were created. They claim there is a “First Amendment privilege” shielding their activities from discovery, but they cannot explain how it applies here where they are engaged in lobbying government officials, where that lobbying is a matter of public record, and where their conduct is in no way likely to meet with government reprisal. And they assert “common and joint interest privileges” but cannot articulate any valid “interest” that creates or preserves a privilege. While some responsive documents might theoretically be subject to the attorney-client privilege, the Subpoenaed Parties have not collected or reviewed such documents, let alone provided a privilege log for them.
The studios then hit back angrily at these requests arguing that Google is going way overboard in asking for basically all of its anti-Google documents, even those it never actually sent to Hood (after finally agreeing that they would produce its communications with Hood):
The MPAA and Jenner have already agreed to produce all responsive documents they exchanged with Attorney General Hood prior to Google?s lawsuit; after all, only documents that Attorney General Hood actually saw could conceivably influence him. That should suffice if Google wants to probe the Attorney General?s motives.
Google filed the present motion because it insists on more. Google demands documents that the Attorney General never saw, and that instead include the internal deliberations of the MPAA, its communications with its members, and the legal advice of Jenner, as well as communications with others similarly aggrieved by Google?s conduct, on the misguided theory that such documents somehow are probative of Attorney General Hood?s intent. Moreover, Google?s demands impose very substantial burdens on the subpoenaed parties, not only because they require a wide-ranging search for documents, but more importantly because many of the documents are protected by the attorney-client and First Amendment associational privileges. Not only would the MPAA and Jenner be required to devote countless hours to the creation of privilege logs, but further time-consuming and expensive litigation with Google over the privilege assertions would be a near certainty.
Then, last week, Google hit back in a flurry of additional filings concerning the MPAA and Hood. Many repeat the same basic points, but it’s clear that the battle is getting angrier and angrier on all sides. You can sense the exasperation on the part of Google’s lawyers as they explain, again, that the studios are clearly trying to hide the details of their plan to use Hood to attack their company in violation of the Constitution:
The Honorable Judge Henry T. Wingate has ruled that Google is likely to succeed against AG Hood under Constitutional and federal law.
It is undisputed that the parties before the Court on this motion ? Twenty-First Century Fox, Inc. (?Fox?), NBCUniversal Media, Inc. (?NBC?), and Viacom, Inc. (?Viacom?) (collectively ?the Subpoenaed Parties? or ?the Studios?) ? played key roles in AG Hood?s unlawful conduct. The record already shows that as part of a secret plan called ?Project Goliath,? they spent hundreds of thousands of dollars lobbying state attorneys general to pressure Google to alter its search results and other products in service of their agenda on federal copyright issues. In connection with Project Goliath, lobbyists for the Subpoenaed Parties formulated AG Hood?s demands to Google and ghost wrote AG Hood?s talking points, letters and even the CID that prompted Google?s lawsuit and Judge Wingate?s injunction.
Despite this extensive involvement in the events giving rise to the underlying litigation, the Subpoenaed Parties claim here that: (a) documents regarding Project Goliath, beyond their direct communications with AG Hood, are irrelevant; (b) they should not, in any event, be burdened to produce what they have; and (c) that such materials might be privileged ? but it is ?premature? to assess that issue. None of these arguments has merit.
And then, after the MPAA revealed some of the requested documents, Google went back to court to highlight that what’s been emailed only serves to more strongly support the claims of a questionable relationship between Hood and the studios, which should support their arguments for more information. It starts out with Google outright mocking the MPAA’s argument that it’s unfair to force them to hand over documents to a court in Mississippi, since they’re NY-based companies not operating in Mississippi. Google points out that the MPAA and the studios seemed to have no problem at all going to Mississippi to hang out with Hood, so it seems odd for them to suddenly act as if Mississippi is out of the way.
The MPAA and Jenner claim that Google somehow ?dragged [them] into its dispute with [the] Attorney General.? … The DCA portrays itself as a mere amicus of the Mississippi court, and reassures this Court that it ?does not do business in Mississippi.? … Their rhetoric does not match reality.
The Subpoenaed Parties sought out Mississippi when they co-opted the state?s Attorney General for their anti-Google campaign. Documents withheld by the MPAA until last week reveal a stunning level of involvement in Mississippi?s affairs. The MPAA and Jenner repeatedly travelled to the state to meet with the attorney general; they hosted campaign fundraisers and made contributions for Attorney General Hood (?AG Hood?); and they controlled the pen used to draft AG Hood?s illicit demands and threats to Google. The DCA (funded by the MPAA) likewise visited with AG Hood in Mississippi, established a presence on the ground, and regularly communicated with him ? retaining Mississippi?s former attorney-general, Mike Moore, to lobby AG Hood as part of ?Project Goliath.? It was Google that was ?dragged? into this dispute by the Subpoenaed Parties, and not the other way around.
And then there’s more:
The Subpoenaed Parties have made clear that they have no problem acting in Mississippi when it suits their ends. After their years of direct involvement there, litigating objections to a single subpoena in the state could not be an undue burden.
The filing notes that while the MPAA revealed its communications with Hood to Google, it did so only if Google promised to keep them confidential. Google notes that there is no legal reason to do so, but for now it agrees to do so. However, it does reveal the nature of what’s in some of them. And what it shows is the MPAA and Attorney General Hood working hand in hand, with the MPAA basically calling the shots.
The Subpoenaed Parties and their representatives made repeated visits to AG Hood?s office in Mississippi to guide his anti-Google work. Even when they weren?t physically at AG Hood?s office, they may as well have been, getting together with him in Denver and Santa Monica and holding a fundraising dinner for him in New Orleans. But those interactions only scratch the surface, as the documents reveal remarkably cozy and constant communications between the Subpoenaed Parties and AG Hood… (MPAA?s Brian Cohen greeting one of AG Hood?s staffers with ?Hello my favorite? and offering to send her pictures of his vacation in New Zealand); …. (discussing a meeting with AG Hood?s staff the MPAA?s Cohen gushed ?OMG we spent 3 hours.?). This pattern of sustained, intimate contact is hardly the mark of a party that merely ?communicated with Attorney General Hood? ?previously? as the MPAA characterizes itself.
Despite protesting that Google has ?inappropriately grouped? it with the MPAA and Jenner …, the DCA is no different. It retained Mike Moore, Mississippi?s former attorney general, as a lobbyist to influence AG Hood regarding his Google investigation, even while Moore was serving as a deputized agent of AG Hood in connection with that same investigation. Alongside the MPAA lobbyists, Moore too was in constant contact with AG Hood regarding Google. And he co-hosted the campaign dinner for him that the MPAA put on. … Similarly, the DCA?s Executive Director, Tom Galvin, was personally involved in discussions with AG Hood, also traveling to Mississippi to meet with him…. Although the DCA claims it ?does not do business in Mississippi? …, its ?business? is lobbying and manufacturing press at the behest of the MPAA which heavily funds it. It was extremely active in that regard in Mississippi. The Subpoenaed Parties did not act alone in animating AG Hood with respect to Google, they coordinated their efforts with the major Hollywood studios who make up the MPAA, including Fox, NBCU and Viacom (collectively the ?NY Parties?). That coordination continues to this day ? the NY Parties are using the same law firm, Jenner, to resist subpoenas from Google, and in the Southern District of New York, they have made relevance, burden and privilege arguments that are virtually identical to those that the Subpoenaed Parties have advanced here.
There’s a lot more in the documents being filed (some of which we’ll cover in other posts), but suffice it to say this fight is getting even nastier as it continues, and it sounds like the contacts between the MPAA and Jim Hood (the same emails that wanted a ridiculous amount of money to reveal following our public records request) show that the relationship was even tighter than was revealed from the leaked Sony emails.