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