Google Confuses Search & eDiscovery; May Cost Billions

By Dan Elam posted 11-02-2011 13:10

  

 

Google is a company run by engineers.  Steven Levy’s great book “In the Plex” (http://books.google.com/books/about/In_the_Plex.html?id=V1u1f8sv3k8C) documents how engineers are the rock stars of one of the world’s most successful companies.  But Google’s culture assumes that everything is best addressed as a technical problem and the company is just now learning that sometimes technology isn’t perfect.

The real irony is that Google is likely to learn from a multi-billion dollar mistake related to, of all things, search.

Oracle is in a lawsuit with Google over license fees associated with Java.  Oracle acquired Java when it purchased Sun and most companies licensed Java.  Google did not and it forms a critical part of Google’s popular Android operating system.  Google gives Android away for free as a way to drive mobile phone users to their ecosystem and extremely profitable searches and advertising.  Given the success of Android, a loss to Oracle is expected to result in billions of dollars in damages.

Computerworld’s James Niccolai wrote a great article going over the particulars (http://www.computerworlduk.com/in-depth/it-business/3314548/how-google-was-tripped-up-by-a-bad-search-in-oracle-lawsuit/) but the bottom line is that when Google responded to Oracle’s discovery request, they used search technologies and produced an email that was particularly incriminating.  (Google argues that the email is out of context and was part of a legal discussion, not a business decision.)  Google hasn’t disclosed the specifics of what happened and has only said their used their tools for the search.

The email had multiple drafts, but only the last one was labeled as “Attorney Work Product” and would have been subject to being withheld from the discovery request.  That means it should never have been produced.  Already the judge in the case has told the Google lawyers that the email is going to be particularly damaging as he has encouraged both sides to negotiate a settlement.

Normally the documents and emails being released to the other side are manually reviewed.  eDiscovery software vendors do a great job with their manual review tools to facilitate this process.  Somehow this didn’t happen and Oracle was given the email.  Normally a miss results in an unimportant document/email being provided, but in this case, the email basically says Google knew it was infringing on the Oracle license and should consider paying.  It is particularly damaging to Google’s case.

Engineers tend to assume that the technology is the answer, but lawyers realize that human review is necessary.  But even then the lawyers can make mistakes by not knowing how the technology works.  One recent lawsuit collected 250,000 pages of electronic documents.  The attorneys did the review and marked 159 as “privileged” so they couldn’t be released.  But the attorneys didn’t realize that marking the documents with an electronic flag wasn’t enough:  the eDiscovery software still copied all of the documents when it gave them to opposing counsel.  The Court ruled that the attorneys process fell “well short of what we would expect for an adequate account of the review procedure.”  The Court ultimately decided that it was the attorneys’ fault for not knowing how the software worked.  More information at:  http://www.rcalaw.com/E-Discovery/Document-Control-Blog/Misunderstanding-of-Vendor-Software-Leads-to-Waiver-of-Privilege.php

When it is all over Google may end with the most expensive eDiscovery mistake in legal history.  Ironic for a company famously committed to “do no evil” and who should know more about the technologies than anyone else.  But Google is smart and can afford to write the check.  Just as Microsoft famously learned from their incriminating emails in their anti-trust lawsuit that led to the company thinking about unstructured data and, in part, leading to the development of SharePoint, look for Google to pay more attention to the eDiscovery market and the human part of search.

 

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