Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
Google Inc.,
Plaintiff,

v.

Jim Hood, Attorney General of the State
of Mississippi, in his official capacity,
Defendant.

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No. 3:14cv981 HTW-LRA
PLAINTIFF GOOGLE INC.’S
MOTION TO COMPEL THE
PRODUCTION OF DOCUMENTS BY
DEFENDANT JIM HOOD, THE
ATTORNEY GENERAL OF THE
STATE OF MISSISSIPPI

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 2 of 17

INTRODUCTION
By order dated April 10, 2015, this Court directed the Attorney General to produce five
categories of documents, absent a valid privilege claim. See Order on Ore Tenus Discovery
Motion, ECF No. 94 (the “April 10 Order”). 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. The log fails to
provide most of the information required by Local Rule 26(a)(1)(C) and does not come close to
satisfying the Attorney General’s burden to establish that each document at issue is privileged.
Plaintiff Google Inc. (“Google”) moves to compel the Attorney General to produce in full the
documents covered by the April 10 Order, as discussed below.
FACTUAL AND PROCEDURAL BACKGROUND
The April 10 Order directed the Attorney General to produce the following five
categories of documents, along with a privilege log, by April 15, 2015:
a. Any draft subpoenas provided to the Attorney General by the third parties
identified in Google’s request [of January 14, 2015].
b. Attorney General Hood’s November 13, 2013 email to [MPAA lobbyist] Vans
Stevenson, and any replies or responses thereto;
c. Attorney General Hood’s August 28, 2014 letter to the Attorneys General in
all 50 states regarding setting up a working group;
d. The Word files listed in item (6) of Google’s January 14, 2015 request
(“Google can take action” “Google must change its behavior” “Google’s
illegal conduct” “CDA”), and any emails from the third parties attaching those
word files; and
e. Any documents already gathered in connection with the Techdirt Mississippi
Public Records Act request that are responsive to Google’s requests.

1

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 3 of 17

The April 10 Order also directed the Attorney General to respond to the remainder of Google’s
document requests by April 27, 2015.
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. See Neiman Decl. Ex. 1. 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.”1 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. Id. The Attorney General’s privilege log, however, did
not substantiate his claims. It failed to provide the author of withheld documents, the names of
the individuals who sent or received withheld communications, the names of documents, and
offered vague descriptions of withheld material, such as “Email with Legal Memoranda.” Id.
After a written and telephonic consultation between the parties, the Attorney General
agreed to cease withholding some information and provided a supplemental privilege log. The
new log, provided by the Attorney General on April 21, includes more information about who
sent and received certain communications; it also provides email subject lines and attachment
names for some of the withheld documents. See Neiman Decl. Ex. 2. 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,
1

That distinction is spurious. We do not ask for any relief in this motion on this ground,
however, because under the Court’s order the Attorney General remains obligated to produce
responsive documents in this category by April 27, whether or not previously gathered.
2

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 4 of 17

Herrington & Sutcliffe LLP (“Orrick”), and SNR Denton US LLP (“Denton”). Id. 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. See Neiman Decl. Ex. 5, Joe Mullin, Hollywood v. Goliath: Inside
the Aggressive Studio Effort to Bring Google to Heel, Ars Technica, Dec. 19, 2014 (hereinafter
Mullin, Hollywood).
On April 21, the Attorney General also provided the engagement letter governing his
relationship with the Mike Moore Law Firm (“Moore”). See Neiman Decl. Ex. 3. The letter is
dated June 29, 2012, two months after the date of one of the documents the Attorney General
withheld based on an alleged privileged relationship with Moore. The letter states that the
Attorney General retained Moore “to assist in its investigation of whether Google’s practices
[REDACTED].” Id. (The Attorney General claimed that the redacted material constituted work
product.) See Neiman Decl. Ex. 2 (Supplemental Privilege Log Entry 11). The letter provided
that “[i]f the [Attorney General] decides to proceed with litigation, the [Attorney General] will
enter into a Retainer Agreement with [Moore].” Neiman Decl. Ex. 3. It stated that the retainer
agreement “will provide . . . for the payment of reasonable fees and expenses to [Moore] from
any recovery in this matter, which will include fees and expenses incurred during the
Investigation.” Id.
Despite conferring in good faith, the parties have not resolved their differences.
ARGUMENT
The Court should order the Attorney General to produce the withheld documents
discussed below because he has not met his burden to demonstrate that they are protected from
disclosure. “A party asserting a privilege exemption from discovery bears the burden of

3

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 5 of 17

demonstrating its applicability.” In re Santa Fe Intl. Corp., 272 F. 3d 705, 710 (5th Cir. 2001)
(assessing claim of common legal interest extension of attorney-client privilege); see also King v.
University Healthcare Sys., L.C., 645 F.3d 713, 720-21 (5th Cir. 2011) (party claiming attorneyclient privilege bears burden of proof); Hodges, Grant & Kaufmann v. IRS, 768 F.2d 719, 721
(5th Cir. 1985) (party claiming attorney-client privilege or work product doctrine bears burden of
proof).
The question of whether a privilege applies “is a question of fact, to be determined in the
light of the purpose of the privilege and guided by judicial precedents.” Id. “A simple
declaration that the privilege exists is insufficient.” Varo Inc. v. Litton Sys., Inc., 129 F.R.D.
139, 142 (N.D. Tex. 1989). The Fifth Circuit has thus repeatedly held that “the privilege
claimant’s burden extends to proof of preliminary facts showing that the matter is eligible for
protection.” Santa Fe, 272 F.3d at 710 n.7. “A failure of proof as to any element causes the
claim of privilege to fail.” Varo, 129 F.R.D. at 142.
This Court’s Local Rules in turn require that privilege logs include at least the following
information: “name of the document . . . description of the document . . . , which description
must include[ ] each requisite element of the privilege or protection asserted; date; author(s);
recipient(s); and nature of the privilege.” L. U. Civ. R. 26(a)(1)(C). The failure to provide this
information “may be viewed as a waiver of the privilege or protection.” Id. The Attorney
General’s initial and amended privilege logs plainly violate this rule. Because the Attorney
General has not otherwise met his evidentiary burdens, nor could he, the Court should compel
the immediate production of each of the document categories discussed below.

4

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 6 of 17

I.

THE COURT SHOULD COMPEL PRODUCTION OF THE DRAFT
SUBPOENAS AND CIDS
The Attorney General refused to produce any documents in the first category specified by

the Court’s April 10 Order: “[a]ny draft subpoenas provided to the Attorney General by the third
parties identified in Google’s request.” In his privilege log, he acknowledges receiving three
draft subpoenas and two draft CIDs. He admits these documents were not prepared by an
attorney representing the Attorney General. Instead, he states that, “on information and belief,”
the subpoenas were prepared at the direction of lawyers at Jenner, Orrick, and Denton—firms
that he has conceded do not represent him. The Attorney General nonetheless claims that all the
draft subpoenas and CIDs are protected work product, and that the three which were transmitted
through Moore are also covered by the attorney-client privilege. The Attorney General cannot
meet his burden, and should be ordered to produce all five documents.
A.

Attorney-Client Privilege Does Not Protect The Draft Subpoenas

To assert the attorney-client privilege, a party “must prove: (1) that he made a
confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of
securing either a legal opinion or legal services, or assistance in some legal proceeding.” United
States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (emphasis in original). “The privilege
does not protect ‘everything that arises out of the existence of an attorney-client relationship.’”
United States v. Nelson, 732 F.3d 504, 518 (5th Cir. 2013), cert. denied, 134 S. Ct. 2682 (2014)
(quoting United States v. Pipkins, 528 F.2d 559, 563 (5th Cir.1976)). Indeed, “[i]t shields
communications from the lawyer to the client only to the extent that these are based on, or may
disclose, confidential information provided by the client or contain advice or opinions of the
attorney.” United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994); see also In re Grand Jury

5

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 7 of 17

Proc. in re Fine, 641 F.2d 199, 204 n. 5 (5th Cir. 1981) (“[T]he attorney-client privilege should
be confined within the narrowest limits consistent with its purpose.”).
The supplemental privilege log entries for the three draft subpoenas withheld as
privileged fail to meet the Attorney General’s burden and violate Local Rule 26(a)(1)(C). See
Neiman Decl. 2 (Supplemental Privilege Log Entries 1, 2, & 5) (reproduced in relevant part
below).
Name
PL000001PL000067

PL000075PL000119

PL000167PL000176

Description
Draft Subpoena
(Request No. 1)

Draft Subpoena
(Request No. 1)

Draft Subpoena
(Request No. 1)

Date(s)
Received
on or
about
Oct. 17,
2014
Received
on or
about
Sept. 11,
2014
Received
on or
about
April 3,
2012

Author(s)
[“On information and belief,
this document was prepared
by or at the direction of Tom
Perrelli and/or Brian Moran.”]
[“On information and belief,
this document was prepared
by or at the direction of Tom
Perrelli and/or Brian Moran.”]
[“On information and belief,
this document was prepared
by or at the direction of Jeff
Modisett and/or Anthony
Eliseuson (SNR Denton US
LLP).”]

Recipient(s)
From Mike Moore Law Firm to
Blake Bee, Special Assistant
Attorney General with the
Office of the Mississippi
Attorney General
From Mike Moore Law Firm to
Bridgette Williams, Special
Assistant Attorney General
with the Office of the
Mississippi Attorney General
From Mike Moore Law Firm to
Bridgette Williams, Special
Assistant Attorney General
with the Office of the
Mississippi Attorney General

Privilege(s)
Attorney-Client
Work Product

Attorney-Client
Work Product

Attorney-Client
Work Product

These entries violate Local Rule 26(a)(1)(C) because the description of the documents
fails to demonstrate that “each requisite element” of the privilege is met. The log does not show,
and the Attorney General has not otherwise proven, that the draft subpoenas fell within the scope
of his attorney-client relationship with Moore,2 that he had an attorney-client relationship with
the potential authors, that he made a confidential communication to a lawyer for the primary
purpose of obtaining legal services, or that production of the subpoena would disclose
confidential information provided by the Attorney General or the advice or opinions of his
counsel. The log also does not explain how the draft subpoena received on or about April 3,
2

Indeed, the Attorney General has redacted from the engagement letter the very information
necessary to determine the scope of Moore’s representation.
6

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 8 of 17

2012—which pre-dates the June 29, 2012 engagement letter—is nonetheless privileged. On this
record, the Attorney General has thus failed to carry his burden.
Indeed, the documents are plainly not privileged. First, the draft subpoenas could not
have been based upon confidential information provided by the Attorney General to his counsel
because he had no attorney-client relationship with any of the suspected authors. Second,
disclosing the draft subpoenas would not reveal the advice of the Attorney General’s counsel
because, as the Attorney General admits, his counsel did not author them. Third, just as
“documents do not become cloaked with the lawyer-client privilege merely by the fact of their
being passed from client to lawyer,” Robinson, 121 F.3d at 975, having one’s attorney serve as a
mere conduit for documents prepared by outside parties does not transform them into privileged
material. See Buford v. Holladay, 133 F.R.D. 487, 491 (S.D. Miss. 1990) (“[I]nformation which
an attorney secures from a third party while acting on behalf of his client is not shielded from
disclosure by the privilege.”); cf. David A. Greenwald et al., Jenner & Block Practice Series:
Protecting Confidential Legal Information at 13 (2011) (“Although many communications from
a lawyer to a client are protected by the privilege, there is an exception in instances where the
lawyer acts merely as conduit for a third party’s message to the client.”).
Fourth, there is good cause to doubt the confidentiality of the Attorney General’s claimed
relationship with the Mike Moore Law Firm. According to the New York Times’ Pulitzer Prizewinning reporting, Mr. Moore disclosed in an interview that he was advising the Attorney
General and “was then hired . . . by the Digital Citizen Alliance” to advise on the same subject
matter. Neiman Decl. Ex. 4, Nick Wingfield & Eric Lipton, Google’s Detractors Take Their
Fight to the States, N.Y. Times, Dec. 16, 2014. The paper further reported that “Mr. Moore then
became a critical source for the movie industry . . . telling them how [the Attorney General’s]

7

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 9 of 17

inquiry was progressing and even alerting industry executives that Google had been sent a
subpoena—before it said it had been told.” Id. Both Mr. Moore’s unusual parallel
representations and his dissemination of otherwise confidential information about the Attorney
General’s inquiry call into question the confidentiality of his communications with the Attorney
General and suggest that any privilege has been waived. The Court need not reach these issues,
however, as the Attorney General cannot meet his burden of showing that the draft subpoenas—
which were not authored by Moore, but drafted by others who do not represent the Attorney
General and merely passed through Moore on their way to the Attorney General—are protected
by the attorney-client privilege.
B.

Work Product Doctrine Does Not Protect The Draft Subpoenas And CIDs

To qualify as work product, a document must be “prepared in anticipation of litigation or
for trial by or for another party or its representative.” Fed. R .Civ. P. 26(b)(3)(A). To determine
if a document is prepared in anticipation of litigation, Fifth Circuit courts look to the “primary
motivating purpose behind [its] creation.” In re Kaiser Aluminum and Chem. Co., 214 F.3d 586,
593 (5th Cir. 2000) (citations omitted). A document is prepared “for [a] party or its
representative” if it is prepared by an agent of the party or its counsel. See United States v.
Nobles, 422 U.S. 225, 238-39 (1975) (holding that “[work product] doctrine protect[s] material
prepared by agents for the attorney as well as those prepared by the attorney himself”).
Just as for attorney-client privilege, the entries for the five draft subpoenas and CIDs
claimed as work product do not meet the Attorney General’s burden and violate local rules. See
Neiman Decl. Ex. 2 (Supplemental Privilege Log Entries 1-5) (reproduced in relevant part
below).

8

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 10 of 17

Name
PL000001PL000067

PL000075PL000119

Description
Draft Subpoena
(Request No. 1)

Draft Subpoena
(Request No. 1)

Date(s)
Received
on or
about Oct.
17, 2014
Received
on or
about
Sept. 11,
2014
Received
on or
about
Nov. 26,
2013

PL000068PL000074

Draft CID
(Request No. 1)

PL000120PL000166

Draft CID
(Request No. 1)

Received
on or
about Apr.
22, 2014

PL000167PL000176

Draft Subpoena
(Request No. 1)

Received
on or
about
April 3,
2012

Author(s)
[“On information and
belief, this document was
prepared by or at the
direction of Tom Perrelli
and/or Brian Moran.”]
[“On information and
belief, this document was
prepared by or at the
direction of Tom Perrelli
and/or Brian Moran.”]
[“On information and
belief, this document was
prepared by or at the
direction of Tom Perrelli
and/or Brian Moran.”]

Recipient(s)
From Mike Moore Law Firm to
Blake Bee, Special Assistant
Attorney General with the Office
of the Mississippi Attorney
General
From Mike Moore Law Firm to
Bridgette Williams, Special
Assistant Attorney General with
the Office of the Mississippi
Attorney General
From Orrick (Brian Moran) to
Blake Bee, Special Assistant
Attorney General with the Office
of the Mississippi Attorney
General

Privilege(s)
Attorney-Client

[“On information and
belief, this document was
prepared by or at the
direction of Tom Perrelli
and/or Brian Moran.”]
[“On information and
belief, this document was
prepared by or at the
direction of Jeff Modisett
and/or Anthony Eliseuson
(SNR Denton US LLP).”]

From Orrick (Brian Moran) to
Mary Jo Woods, Special Assistant
Attorney General with the Office
of the Mississippi Attorney
General
From Mike Moore Law Firm to
Bridgette Williams, Special
Assistant Attorney General with
the Office of the Mississippi
Attorney General

Work Product

Work Product

Attorney-Client
Work Product

Work Product

Attorney-Client
Work Product

The document descriptions fail to show that the elements of the work product doctrine are
met: they offer no basis to conclude that the documents were prepared by the Attorney General,
his attorney, or one of their agents or that the author of the materials anticipated litigation. The
log also fails to describe the Attorney General’s relationship, if any, with the law firms and
private attorneys it references. The Attorney General has thus failed to meet his burden to show
that the materials are work product.
Indeed, for multiple reasons it is clear the Attorney General cannot do so. First, having
conceded that he had no attorney-client relationship with the suspected authors, the Attorney
General cannot argue that the materials constitute his work product. They were not prepared by
him, by his attorney, or by anyone retained to assist the Attorney General or his counsel in
preparing for litigation. See Nobles, 422 U.S. at 238-39 (extending work product to the agents of

9

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 11 of 17

a client or its counsel).3 Second, having conceded that he does not even know who prepared the
materials, the Attorney General cannot prove that the unknown author had the motive—
preparation for anticipated litigation—required to establish the work product protection.
Third, if (as seems likely) the materials were created by counsel for a private client that
did not itself anticipate litigation as a party, they are not protected because documents created at
the direction of someone who does not anticipate being (or representing) a party to litigation is
not work product. See, e.g., In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th
Cir. 1997) (“The essential element . . . is that the attorney was preparing for or anticipating some
sort of adversarial proceeding involving his or her client . . . we know of no authority allowing a
client . . . to claim work product immunity for materials merely because they were prepared
while some other person . . . was anticipating litigation.”).
Fourth, even if the materials did somehow constitute third-party work product, the thirdparty surrendered that protection by sharing the materials with the Attorney General. “[W]ork
product immunity is lost when a party simply makes a voluntary submission of material to a
government agency to incite it to attack the informant’s adversary.” Baricuatro v. Indus. Pers. &
Mgmt. Servs., Inc., No. CIV.A. 11-2777, 2013 WL 3367137, at *12 (E.D. La. July 5, 2013).
Finally, the Attorney General has not demonstrated that he is authorized to assert work
product as to these documents, as he is neither the attorney who prepared the material nor the
client that attorney represented. See In re Grand Jury Proc., 43 F.3d 966, 972 (5th Cir. 1994)
3

During the meet-and-confer process, the Attorney General identified Boyer v. Gildea, 257
F.R.D. 488 (N. D. Ind. 2009), as authority for classifying materials received from third-parties as
work product. That case is inapposite. In it, the “third-party” at issue was the former
representative of the party and was functioning in that capacity. See id. at 492 (“[I]t is
significant that Werling served as the Trustee’s prior counsel in this litigation and that [the
communication at issue] was directed to the Trustee’s current counsel.”). The Attorney General
does not contend that Jenner, Orrick, or Denton represented him in the past.
10

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 12 of 17

(“[T]he work product privilege belongs to both the client and the attorney, either one of whom
may assert it.”).
Because the Attorney General has failed to meet his burden to show that the withheld
material is protected by the work product doctrine, nor could he carry that burden, the Court
should compel production of the documents.
II.

THE COURT SHOULD COMPEL PRODUCTION OF THE REQUESTED
WORD FILES
The Attorney General also failed to produce any documents responsive to the fourth

category of documents required to be produced under the Court’s April 10 Order: “The Word
files listed in item (6) of Google’s January 14, 2015 request (‘Google can take action’ ‘Google
must change its behavior’ ‘Google’s illegal conduct’ ‘CDA’), and any emails from the third
parties attaching those word files.” Instead, he withheld three “Email with Legal Memoranda”
based on a claim that they were work product. The Attorney General’s supplemental privilege
log entries for these items violate Local Rule 26(a)(1)(C) and do not meet his burden to show
that the documents are work product. See Neiman Decl. Ex. 2 (Supplemental Privilege Log
Entries 8-10) (reproduced in relevant part below).
Name
PL000202
PL000222

PL000223
-

Description
Email with Legal Memoranda (Request No. 4).
[“The subject of the email is entitled ‘Draft
memos.’ The attachments listed on the email are
as follows: ‘AG Memo 3 – Google Must Change
Its Behavior’; ‘AG Memo 4 – CDA’; ‘AG Memo
2 – Google Can Clamp Down’; AG Memo 1 –
Google Illegal Conduct.’ The titles of the four
legal memoranda are as follows: ‘Google Can
Take Action to Stop Illegal Behavior’; ‘The
Communications Decency Act Does Not
Immunize Google From Liability For Facilitating
Illegal Conduct’; ‘Google Must Reform Its
Behavior’; ‘How Google Facilitates Illegal
Conduct’.”]
Email with Legal Memoranda (Request No. 4).
[“The subject of the email is entitled ‘January

Date(s)
Received
on or
about
Jan. 14,
2014

Author(s)
[“The email with
the attached
memorandum was
sent from Rob
McKenna. On
information and
belief, this
document was
prepared by or at
the direction of
Tom Perrelli, Rob
McKenna, and/or
Brian Moran.”]

Recipient(s)
From Orrick
(Rob McKenna)
to Blake Bee,
Special Assistant
Attorney General
with the Office
of the
Mississippi
Attorney General

Privilege(s)
Work
Product

Received
on or

[“The email with
the attached

From Jenner &
Block (Thomas

Work
Product

11

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 13 of 17

PL000245

PL000177
PL000201

Meeting.’ The attachments listed on the email are
as follows: ‘AG Memo 1 – Google Illegal
Conduct’; ‘AG Memo 3 – Google Must Change Its
Behavior’; ‘AG Memo 2 – Google Can Take
Action’; ‘AG Memo 4 – CDA’. The titles of the
four legal memoranda are as follows: ‘How
Google Facilitates Illegal Conduct’; ‘Google Can
Take Action to Stop Illegal Behavior’; ‘Google
Must Reform Its Behavior’; ‘The Communications
Decency Act Does Not Immunize Google From
Liability For Facilitating Illegal Conduct.’]
Email with Legal Memoranda (Request No. 4)
[“The subject of the email is entitled ‘January
Meeting.’ The attachments listed on the email are
as follows: ‘AG Memo 1 – Google Illegal
Conduct’; ‘AG Memo 3 – Google Must Change Its
Behavior’; ‘AG Memo 2 – Google Can Take
Action’; ‘AG Memo 4 – CDA’. The titles of the
four legal memoranda are as follows: ‘How
Google Facilitates Illegal Conduct’; ‘Google Can
Take Action to Stop Illegal Behavior’; ‘Google
Must Reform Its Behavior’; ‘The Communications
Decency Act Does Not Immunize Google From
Liability For Facilitating Illegal Conduct.’]

about
Jan. 9,
2014

Received
on or
about
Jan. 9,
2014

memorandum was
sent from Thomas
Perrelli. On
information and
belief, this
document was
prepared by or at
the direction of
Tom Perrelli, Rob
McKenna, and/or
Brian Moran.”]
[“The email with
the attached
memorandum was
sent from Thomas
Perrelli. On
information and
belief, this
document was
prepared by or at
the direction of
Tom Perrelli, Rob
McKenna, and/or
Brian Moran.”]

Perrelli) to Blake
Bee, Special
Assistant
Attorney General
with the Office
of the
Mississippi
Attorney General

From Jenner &
Block (Thomas
Perrelli) to Mary
Jo Woods,
Special Assistant
Attorney General
with the Office
of the
Mississippi
Attorney General

Work
Product

The work product assertions over these Word documents suffer from the same
deficiencies as those over the draft subpoenas and CIDs. Though listing the file names and titles
of the attachments, the supplemental log’s document descriptions fail to show that the “requisite
elements” of the work product doctrine are met. Reading the entries, it is clear that the
documents were not prepared by the Attorney General, his attorney, or one of their agents at all,
but instead are traced to Jenner and Orrick, who represent Microsoft and the MPAA in their
lobbying activities, not the Attorney General. Nor were the documents prepared for the Attorney
General; rather, the documents appear to be generic advocacy pieces, which Jenner and Orrick
disseminated to multiple Attorneys General (and maybe other recipients) in hopes of generating
hostility towards Google. See Neiman Decl. Ex. 5, Mullin, Hollywood (reporting that Jenner’s
Perrelli intended to provide the documents to Connecticut’s Attorney General, who was looking
for a “small number of tangible things” to request from Google). Nor does the information

12

 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 14 of 17

provided suggest that the documents were prepared in anticipation of litigation. Indeed, many of
the document titles do not even appear to relate to litigation, such as “Google Can Take Action to
Stop Illegal Behavior” or “Google Must Reform Its Behavior.” And, for the reasons discussed
above, see supra at 10, even if the materials were originally prepared by or for a party in
anticipation of litigation, any work product protection was waived when the materials were
shared with the Attorney General in an effort to incite him to attack Google.
III.

THE COURT SHOULD COMPEL PRODUCTION OF THE REDACTED
PORTIONS OF THE ATTORNEY GENERAL’S LETTERS TO STATE
ATTORNEYS GENERAL
The third category of documents in the Court’s April 10 Order was “Attorney General

Hood’s August 28, 2014 letter to the Attorneys General in all 50 states regarding setting up a
working group.” In response, the Attorney General provided 31 copies of a letter transmitted to
state attorneys general around the country, redacting approximately half the letter on the grounds
that it was protected by the work product doctrine and common-interest doctrine. The Attorney
General failed to support either of these claims. See Neiman Decl. Ex. 2 (Supplemental Privilege
Log Entry 7) (reproduced in relevant part below).
Name
D000004D000065

Description
Redacted Portion of Letters
from Attorney General Hood

Date(s)
August
28, 2014

Author(s)
Attorney General
Hood

Recipient(s)
Attorneys General
in Other States

Privilege(s)
Work Product
Common Interest Doctrine

First, with respect to work product, the Attorney General’s privilege log again fails to
comply with Local Rule 26(a)(1)(C) or offer a basis for finding that the information is protected.
Most importantly, the log entry fails to describe how preparation for litigation was the “primary
motivating purpose” for preparing the letters. And indeed, the unredacted portion of the letters
makes no reference to litigation of any kind. It instead describes a voluntary program that
Google offered to state attorneys general to allow them to flag illicit content on YouTube for

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 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 15 of 17

priority review and (if appropriate) removal. See Neiman Decl. Ex. 1 (D000004). If the
“primary motivating purpose” of the Attorney General’s letter was to persuade Google to alter
this program or make additional voluntary policy changes—rather than prepare for litigation—
the document cannot be work product. See United States v. El Paso Co., 682 F.2d 530, 543 (5th
Cir. 1982) (declining to extend work product protection to tax pool analysis where “[t]he primary
motivating force behind the tax pool analysis . . . is not to ready El Paso for litigation over its tax
returns [, but] . . . to anticipate, for financial reporting purposes, what the impact of litigation
might be on the company’s tax liability.”)
Second, the Attorney General’s privilege log fails to show that these letters are
encompassed within the claimed “Common Interest Doctrine.” The Fifth Circuit has warned that
the common legal interest privilege “must be construed narrowly” because it is “an obstacle to
truth-seeking.” Santa Fe, 272 F.3d at 710. The Fifth Circuit recognizes it only for “(1)
communications between co-defendants in actual litigation and their counsel; and (2)
communications between potential co-defendants and their counsel.” Id. (internal citations
omitted); see also Power-One, Inc. v. Artesyn Techs., Inc., 2007 WL 1170733, at *2 n.2 (E.D.
Tex. April 18, 2007) (Love, J.) (“Of course, the common legal interest doctrine is not itself a
privilege, but merely extends a recognized privilege, often the attorney-client privilege, to
communications with parties with a common legal interest.”).
Here, the Attorney General has offered no basis to find that his letter falls within the
narrow scope of the Fifth Circuit’s common legal interest doctrine, nor could he. The attorneys
general are neither co-defendants nor potential co-defendants (nor potential co-plaintiffs) in
litigation related to the letter.

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 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 16 of 17

CONCLUSION
For the foregoing reasons, Google respectfully requests that the Court compel the
Attorney General to immediately produce the requested documents.
DATED this 22nd day of April, 2015.
Respectfully submitted,

OF COUNSEL:
Jamie S. Gorelick
Patrick J. Carome
Blake C. Roberts
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
Telephone: (202) 663-6000
Facsimile: (202) 663-6363
jamie.gorelick@wilmerhale.com
patrick.carome@wilmerhale.com
blake.roberts@wilmerhale.com
Peter G. Neiman
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Telephone: (212) 230-8000
Facsimile: (212) 230-8888
peter.neiman@wilmerhale.com

__s/Fred Krutz__________________
Fred Krutz, MSB#4270
Daniel J. Mulholland, MSB#3643
FORMAN PERRY WATKINS
KRUTZ & TARDY LLP
200 South Lamar Street, Suite 100
Jackson, Mississippi 39201
Post Office Box 22608
Jackson, Mississippi 39225-2608
Phone: (601) 960-8600
Facsimile: (601) 960-8613
fred@fpwk.com
mulhollanddj@fpwk.com
Attorneys for Plaintiff Google Inc.

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 Case 3:14-cv-00981-HTW-LRA Document 100 Filed 04/22/15 Page 17 of 17

GOOD FAITH CERTIFICATE
A Good Faith Certificate executed by counsel for the parties is filed with this motion
pursuant to Local Rule 37(a).

CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing with the Clerk of the Court for the United
States District Court for the Southern District of Mississippi by using the Court’s CM/ECF
system on April 22, 2015. I further certify that all parties are represented by attorneys who are
registered CM/ECF users and that service will be accomplished by the CM/ECF system.

s/Fred Krutz
Fred Krutz, MSB#4270

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