It is weird that the legal system has developed where absolutely all communication except that which has lawyers can be discovered in court. Almost like a guild support it's members. But if that's the way it is so be it.

Everything will now be feature more lawyers and education on law will be client attorney privileged.

Then it’s covered.

If they aren’t, it’s not.

10 execs? Maybe. If they’re all involved in the same thing and all asking for advice. Seems unlikely to actually be the case though. So probably not.

100 folks listening to a presentation? Definitely not covered.

“Joey said that we can kill the competition with this new feature, is that going to be a problem for us from an antitrust perspective?”

Privileged: whether or not that is going to be a problem from an antitrust perspective

Non-privileged: Joey said that we can kill the competition with this new feature

The number of people is irrelevant except as a gauge for whether or not legal advice is actually being provided. If you were to cc an entire department on an email to your counsel with the above question it wouldn’t change the analysis. Recall that in the corporate context the corporation is the client and employees are the corporation’s agents. Whether 1 or 100 employees, it’s the same corporation.

What should be the “correct” answer legally is that, if the lawyer is providing the training, it should be privileged regardless of how often it occurs or how many people are trained. The potential catch here is that you can’t use privilege to protect conversations where you’re telling people how to commit a crime, and teaching hundreds of people how not to lose antitrust buzzword bingo starts to look suspiciously like telling (or even helping) your client (the corporation) how to get away with a crime.

Training is not privileged, for the same reason CC’ng an entire department will cause one to lose privilege on a conversation.

There are parties privy to the conversation (which the parties are aware are party to the conversation) that aren’t even remotely plausibly trying to get legal advice, or part of the matter being advised on in any direct way.

Trainings aren’t seeking legal advice.

Being a random employee reading email isn’t seeking legal advice.

The larger the group, the less plausible any argument gets for this reason. There is no way a lawyer is having a conversation or giving legal advice (actual advice) to 100 people at once. Even 10 is highly improbable.

If all parties to the conversation can’t even plausibly claim it’s a private conversation with their lawyer to seek legal advice, then the courts aren’t going to even think of taking a privilege claim seriously.

Even if they can it can still be pierced if there is evidence privilege was used to commit crimes, further a conspiracy, etc.

“[T]raining materials prepared by in-house counsel to advise employees on the law applicable to their jobs are entitled to [attorney-client] protection because they provide legal advice.”

https://law.justia.com/cases/federal/district-courts/rhode-i...

It wasn’t a class given widely, it wasn’t broad or generic, it wasn’t given unsolicited, etc.

Point taken though, and thanks for the cite!

It was a training given widely, and online. It was arguably broad and generic. It was given unsolicited (unless you count every training an employee is told to do as unsolicited).

The fact that you misunderstand the entire factual and procedural posture of this opinion should key you in to how out of your depth you are. Every discovery fight is a special edge case, that’s why I said corporate privilege is hard in theory and even harder in practice.

(A good heuristic for legal reasoning is that anything that sounds like a “one weird trick to avoid getting prosecuted” listicle item has already been picked clean by the courts.)

But frankly, all the G stuff was with attorney guidance and well vetted. It already had what you’re trying to get to the best of the very well paid attorney’s ability.

  "-- ATTORNEY CLIENT PRIVILEGED --"

So besides being in good standing with a member of their guild you also have to preface your communication with their religious texts. \s

That only applies when corresponding with counsel, and even there in limited circumstances (not everything can be privileged). If no attorney is addressed, it cannot be privileged.

IIRC, applying the label arbitrarily risks all correspondence being made discoverable.

    -----BEGIN ATTORNEY/CLIENT PRIVILEGED BLOCK-----

Not only that, but if you have the wrong people in the room, then you can lose what would otherwise have been attorney-client privilege.

I was once told by a lawyer that emails were privileged (assuming you are communicating with your corporate counsel) but Slack messages with the same person were not. Is this just a lack of precedent with Slack?

- you have to have a reasonable expectation of privacy for the communication (yelling it across a crowded room, or using a line you know is recorded by someone else means no privilege)

- it needs to be a legitimate attempt to receive counsel from said attorney.

- the only other folks who are in the communication are also related to the matter and also clients of the attorney (or attorneys for you).

So asking your attorney ‘hey, I ran over someone - am I in trouble?’ over direct private email (or other channel) that is private? That’s privileged.

CC’ng your attorney on a thread where you’re conspiring between 3-4 other people so that ‘it’s attorney client priviledged’, but the thread isn’t about you getting legal advice about the legality of the endeavor?

Not privileged.

Think of it this way:

- the courts want to be sure that you can have direct conversations with your attorney on legal matters. That includes asking questions about the law, defending yourself, etc. and they don’t want you to have to worry about putting your foot in your mouth in the process. Because a big reason attorneys exist is because people will put their foot in their mouth constantly without help.

- the courts also want to be sure that the truth of any legal matter (with the assistance of your attorney) is found in a speedy, accurate, and expeditious manner.

So if you aren’t legitimately trying to get legal advice or help? Pound sand.

You still need to be careful with email too. Just because you are emailing a lawyer doesn't make it automatically privileged, though there is a much stronger presumption and argument for privilege. But, like, your plans to go to the bar with your lawyer buddy after work are not privileged, even if they are also your corporate counsel. It still needs to be related to legal advice, or in anticipation of litigation (which itself is a very large umbrella that gets you a lot of privilege for otherwise mundane corporate communications).

At any rate, a good counsellor will tell you what is safe and not safe. Be sure to take it seriously.

One obvious reason: there are pro-bono and state-provided attorneys, but they still retain the privilege with clients that don't pay.

There's no requirement for money to change hands, and the mere act of doing so doesn't create an attorney-client relationship where one doesn't otherwise exist.

https://arstechnica.com/tech-policy/2022/03/google-routinely...

If I'm understanding this correctly you proactively filter comms through an AI. If it detects you said something that could be interpreted a certain way the communication isn't sent and the user is told to be more careful in their phrasing?

That's pretty brilliant to be honest. Except maybe the discovery will then be on what the AI filter was instructed to prevent as if that's an admission of guilt.

I absolutely think this is a good startup idea, and have been pondering building out a prototype.

I don’t love it, but in so many ways when you sit down and look at the alternative to it that isn’t tearing down or radically altering the existing legal system, it’s actually the better platform for the future.

Unfortunately there is a plethora of social control (and behavioral modification) issues intrinsic in this technology area, and like medical it requires some serious and open ethical exploration.

Thanks for the good comment.

I guess we'll get an idea by the result of this lawsuit.

If it is said in a way clearly making it obvious that not just the words, but the intent is bad, and to instead do the other thing? Seems likely to not be an issue.

If it is saying the intent is fine, just use the other words? Then yeah.

If it gets to the press, chances are it’s being spun the opposite way that context would show it was being used, because that’s how it usually works to get clicks.

The devil is always in the details. If you kill the US steel industry by being a government that pays people to buy steel from your country, that's problematic. If you just make shit and people like it, though, that should never be illegal.

The issue is that, once you reach Google scale, you have so many tools to put the competition out of business that are unrelated to product fit. And, in the case of Google, they've been known to do just that.

So yeah, you can't really compare an incumbent with monopoly power to an underdog, just like some sentences from young kids are hilarious, that would be chilling if adults said them.

I think this "Others must lose so that I win" attitude is one of the more toxic attributes of this Thunderdome Capitalism so many industries have somehow ended up in. Wouldn't it be great if we could have dozens of businesses all successful, all doing "somewhat good" rather than having to always have a small number of winners that take everything?

If I'm going to open a laundromat a block away from Paul's competing laundromat, I'm not doing it to try to put Paul out of business. I'm just trying to capture enough business so that we can coexist comfortably. Some entrepreneurs just don't know the meaning of the word "enough".

Antitrust has a long history and it has nothing to do with tech.

In Google's case, I suspect "search" will die to AI like Blackberries died to iPhones. Google is already proving that its size and bureaucratic unwieldiness are major obstacles to its competing in the AI space. Would we really hold back the vast social benefits of this progress because we object to some people becoming obscenely wealthy?

> But if your laundromat is better in some way (service, cost, marketing), why wouldn't you want to grow?

Maybe you just want to run a laundromat? Is that not enough these days?

> Maybe you just want to run a laundromat? Is that not enough these days?

It's enough, until someone comes up with something that disrupts the industry. In a fast-evolving world, standing still is a doomed strategy. Do you really want to be the bookseller when Amazon comes along? Or the taxi driver competing with Uber? or on the board of RIM watching the Apple keynote in 2007?

Edit: Come to think of it, this rather parallels the natural world. Very few creatures have been able to stay relatively unchanged for tens of millions of years. They have been able to do so because the niche the evolved to optimally fill has remained unchanged and undisrupted. The rest of the natural world undergoes constant churn as new species emerge and others go extinct. It's the same in business. The less likely your niche is to be disrupted the more insulated you'll be from the necessity to change (assuming you've optimally adapted). Prime examples are best-in-class restaurants, whose proprietors often do just about the same thing their entire lives very successfully.

If it was as simple as people just ceasing continued use of the product, one would expect a large dip. If there are other effects in play besides "use that which is better, switch anytime" (e.g. anticompetitive behaviors), one would expect there not to be.

So, what reality do the numbers reveal?

p.s. the same exercise can be done regarding google's enshittification of search, and seeing how many people change the default search in chrome as a result

It depends on your timescale. Early adopters are already shifting away from it. I don't expect these effects to be immediate, but do you expect that everyone will still be using Chrome in 10 years? 20? 30? The same can be said of search. Early adopters are already using ChatGPT for many queries.

I do, if this efficient market hypothesis were to hold true

The changes to the browser were immediate from one version to the next, what would stop everyone who doesn't like that from switching browsers instead of upgrading?

The fact that it isn't immediate kind of proves the point: the market doesn't always favor the best product, because dominant players can exploit their market position to make anti-features and hide them from users

If there was a truly efficient market, this behavior would be immediately punished. That it was not, proves that there is not.

If a dominant company can abuse its users for a decade or more before the market handles the problem, that speaks to a lack of a competitive environment, or anticompetitive behavior. The market has failed, and thus some intervention is warranted to stop the abuse sooner than that. I propose for your economic theory, though, the title of "eventual efficiency" in markets :)

> what would stop everyone who doesn't like that from switching browsers instead of upgrading?

The fact that they're human beings with their own lives and finite attention spans. There is an entire body of work segmenting markets into categories like innovators, early adopters, early majority, etc.

Did you wait in line for an iPhone on launch day? Why not?

> If there was a truly efficient market

https://en.wikipedia.org/wiki/No_true_Scotsman whats a truly efficient market?

> that speaks to a lack of a competitive environment

The environment is plenty competitive. There is no further proof required of this than the continued rise of new companies that displace their competition. In a thriving ecosystem there is lots of death as well as lots of birth.

> The market has failed

It hasn't, it just doesn't move on timescales you can relate to easily. Organizing people to make and distribute things takes unimaginable time and energy. Supposing that a centrally planned intervention can be more efficient is the height of communist fallacy. It has failed every time it has been tried.

the environment is not competitive enough. There is no further proof required of this than that google can abuse its users and make products worse for years, perhaps decades, without experiencing market punishment for it

the end determines the sufficiency of the means: if the end is that google can do that, the current means are insufficient, because that is bad

> Organizing people to make and distribute things takes unimaginable time and energy.

it absolutely does, far, far moreso when you're going up against a giant like google

solution: slay the giant. We've tried not doing so, and it brought us here, to this failure point.

But the problem I'm looking at here is the phrase "...you're under investigation for abusing monopoly power..." anticipates the result to some degree. This is a an exhaustive list of the guidance lawyers can provide. Both seem to anticipate that some wrongdoing has been done. It leads to shallow thinking:

... you're under investigation for abusing monopoly power and lawyers tell employees not to use phrases like "We'll crush the competition".

... you're under investigation for abusing monopoly power and lawyers provide no guidance, then employees use phrases like "We'll crush the competition".

Most of the work is actually being done by the initial frame, not what the employees are told.

[0] I wouldn't know, I don't use Google search.

Did Google give Chrome a boost? Yes. Was that a good thing? Also yes. Chrome was the better browser at the time they did that - still arguably is. But that doesn't mean monopolies are involved. Apple gives privileged advertising to the iPhone, iPod and iPad on their website and they aren't a monopoly in any sense.

Google is arguably less of a monopoly in pushing Chrome because they sell advertising to other people. I'm sure Samsung would pay an absurd amount of money to get an ad on apple.com with any URL path. In theory Google could be a monopoly and put a chrome ad on google.com but the fact is that they aren't a monopoly and pushing chrome did good for the world, not harm. They're just providing exceptional products and people trust the brand [0].

[0] Trusting brands in software is silly.

AlphaSite: "Google has a monopoly and used it to build a second monopoly [argument]"

There isn't much there to address. But I did directly address it.

(1) He claimed that Google had a monopoly, I ignored that because I'd addressed that in my original comment.

(2) He claimed that Chrome had a monopoly. I provided an argument that it wasn't (it is really easy not to use Chrome. You give up literally nothing switching to Brave for example).

(3) He claimed that Googe used monopoly tactics to build Chrome's market share. I provided a counterexample that the tactics used aren't monopoly tactics because other companies do more or less the same thing. Advertising your own products on your own site isn't monopoly behaviour. And even if Google was a monopoly and that is monopoly behavior - both of which I don't think are true - that isn't exactly an abuse of monopoly power, it is pretty tame.

It'd be helpful for me if you pointed out why you don't think that is addressing the comment. It seemed pretty direct to me.

* Microsoft controlled the Windows API and appeared to be sabotaging attempts to build cross-platform applications. And they seemed to think it was substantial interference. Take this for example:

"Microsoft's videotape showed the process as being quick and easy, resulting in the Netscape icon appearing on the user's desktop. The government produced its own videotape of the same process, revealing that Microsoft's videotape had conveniently removed a long and complex part of the procedure and that the Netscape icon was not placed on the desktop, requiring a user to search for it. Brad Chase, a Microsoft vice president, verified the government's tape and conceded that Microsoft's own tape was falsified." [0]

If MS had restricted itself to a banner on their website saying "Download and Install IE!" they'd have been fine; the issue was that they were creating an environment to destroy Netscape for no good technical reason, they just wanted to destroy Netscape. And that was part of a pattern of behaviour where they were employing consistent tactics against anyone trying to create cross-platform software.

[0] https://en.wikipedia.org/wiki/United_States_v._Microsoft_Cor....

Isn’t Google doing the same by making their search engine default on Chrome, Android and even by paying Apple billions to make the default on Safari?

Now I’m not sure that something you could actually define as a monopoly but they do control almost the entire search market on mobile because they directly control Android and pay Apple huge amounts of money to achieve the same on Safari.

ChromeOS comes with a bundled browser, the big no-no that cost Microsoft.

I'm happy to be proven wrong if the year of the Linux desktop has finally come!

No, I think that's next year. ;)