Google’s Union Campaign Strategy Documents Not Privileged, NLRB Administrative Law Judge

Google recently suffered a blow in its ongoing National Labor Relations Board litigation, when an Administrative Law Judge appointed to rule on a discovery dispute ordered the Silicon Valley company to turn over the lion’s share of certain documents subpoenaed by former Google employees. Discovery issues have become more prevalent in NLRB litigation as massive document subpoenas issued by the government are the norm. The disputes are almost singularly one-sided: The agency is shielded from almost all discovery but is free to serve its own subpoenas. A recent ruling by an Administrative Law Judge demonstrates the perils of attempting to cloak vast categories of documents as attorney-client privileged or work product.

Google, which faces allegations of unlawful interference with, and retaliation for, employees’ union organizing activity, had sought to characterize the documents at issue, communications between Google and a labor relations consulting firm, as privileged. The disputed documents included advice and materials provided by the consultants to assist Google in mapping out its own campaign strategy.

“Privileged” materials are, of course, generally not discoverable. The attorney-client privilege protects communications between an attorney and client made, in confidence, for the purpose of obtaining legal services. It is generally insufficient to simply mark a document with a privileged label or to copy attorneys on the communication to protect the…

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