Jessica Karmasek Aug. 19, 2015, 10:21am


SAN FRANCISCO (Legal Newsline) - Google Inc. has enlisted the help of a California federal court in its ongoing fight against Mississippi Attorney General Jim Hood and his attempts to investigate the search engine giant.

Earlier this month, Google filed a notice of motion to compel with the U.S. District Court for the Northern District of California, San Francisco Division.

The Mountain View, Calif.-based company wants the federal court to force law firm Orrick Herrington & Sutcliffe LLP to “immediately” comply with Google’s subpoena for certain requested documents.

The law firm, headquartered in San Francisco, along with the Motion Picture Association of America and its member movie studios, have exercised “remarkable influence” in Mississippi, Google alleges in its Aug. 3 motion.

“Documents already produced by AG Hood and other non-parties -- as well as documents uncovered by reporters -- reveal that they formulated a list of demands for AG Hood to send to Google; ghost wrote letters to Google that AG Hood sent; dictated the timing of his investigative escalations; tried to recruit others government officials to support him; and even helped prepare the 79-page CID at the center of this case,” the company wrote in its 25-page motion.

Google currently is suing Hood in the U.S. District Court for the Southern District of Mississippi over his efforts to regulate third-party content online.

The attorney general, who sent the 79-page subpoena to Google last fall, has said he suspects the company is helping criminals through its search engine and autocomplete function. He also takes issue with the company’s sharing of YouTube ad revenue.

The company, which filed its lawsuit against Hood in December, argues it can’t be held responsible for such content and believes the attorney general is in cahoots with the movie studios to use legal action to obtain better piracy protection.

Google also alleges, in its motion, that Orrick is acting as a lobbyist for Microsoft Corp.

“Given Orrick’s key role, Google subpoenaed it for information about the behind-the-scenes maneuvering that fostered AG Hood’s violations of Google’s Constitutional and federal rights,” the company wrote.

“The subpoena at issue here seeks targeted information from Orrick that is directly related to AG Hood’s actions. This includes the lobbyists’ direct correspondence with AG Hood, as well as communications among themselves and their cohorts that reference both AG Hood and Google.”

To date, Orrick has refused to produce anything, Google alleges.

“It has withheld all responsive documents, objecting that they are irrelevant or protected by some unsubstantiated privilege,” the company wrote.

Neither argument holds water, Google contends.

“The relevance objections are meritless,” the company wrote. “As Judge [Henry] Wingate has already held, there is substantial evidence that AG Hood’s actions against Google were undertaken in bad faith and for a retaliatory purpose. The requested documents will provide further support for that finding at trial.”

It continued, “Its privilege assertions are similarly misplaced. As a general matter, the communications at issue do not fall under the purview of any privilege because Orrick was engaged in lobbying government officials, not the provision of legal services. The assertions of individual privileges fare no better. Orrick invokes ‘work product protection’ but cannot identify any litigation it contemplated at the time the requested documents were created because none was.”

The firm also claims there is a “law enforcement” privilege shielding its activities from discovery.

Google argues that no such privilege nor “common and joint interest” privileges apply in this case.

“While some responsive documents might theoretically be subject to the attorney-client privilege, Orrick has not even collected or reviewed such documents, let alone provided a privilege log for them,” the company wrote.

In March, the Southern District of Mississippi granted Google’s motion for a temporary restraining order and motion for preliminary injunction against Hood.

In his full written order March 27 -- a follow-up to his March 2 order granting Google’s motion for a TRO and preliminary injunction -- Wingate was highly critical of the attorney general, saying he could not “wage an unduly burdensome fishing expedition into Google’s operations.”

Wingate’s order prevents the attorney general from enforcing subpoenas or bringing a civil or criminal charge against Google under state law, as threatened.

Hood filed an appeal with the U.S. Court of Appeals for the Fifth Circuit soon after.

Last month, 40 of the nation’s state attorneys general filed an amicus brief siding with Hood.

But that hasn’t slowed Google’s efforts to seek documents it believes are related to the Mississippi case.

The company, in June, filed motions in the U.S. District Court for the District of Columbia to compel Digital Citizens Alliance, the MPAA and law firm Jenner & Block LLP to produce documents pursuant to a subpoena issued by Google in the Southern District of Mississippi.

Last month, U.S. Magistrate Judge Deborah Robinson agreed to move the fight over the subpoenas to the Mississippi federal court.

In her 10-page order, Robinson said “exceptional circumstances” warranted the move.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

Organizations in this Story

Mississippi Attorney General's Office
550 High St
Jackson, MS 39201

Mississippi Attorney General
550 High St Suite 1200
Jackson, MS 39201

Microsoft
1 Microsoft Way
Redmond, WA 98052-6399

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