Suppose a competitor with a reputation for suing or a government agent drops by, accusing a company of wrongdoing. In response, in-house counsel concludes that it is prudent to determine whether there is merit to the accusation of wrongdoing. In-house counsel then instructs a senior employee to gather information about the accusation of wrongdoing and report back via email. Senior employee collects information and prepares an email summarizing his/her conclusion, including some less-than flattering information. Senior employee addresses the email to management and in-house counsel, marking the email "attorney-client privilege" and/or "attorney work product." During the subsequent litigation with respect to the previous accusation of wrongdoing, the company asserts attorney-client privilege and attorney work product with respect to the email and all drafts thereof. The other side moves to compel the production of the email and all drafts thereof.

Google, in a dispute with Oracle, was faced with these facts, and the court ruled that the email and drafts of the email were neither attorney-client privilege nor work product and ordered their production. The order can be found here.

In ruling against Google, the judge focused on several key facts and observations...