How to avoid the Google privilege ruling by using caution when writing emails

Jude A. Fry, partner, Fay Sharpe LLP

Jude A. Fry, partner, Fay Sharpe LLP

Many companies train employees to enter phrases such as ‘confidential’ or ‘attorney work product’ and copy counsel when sending sensitive emails so that the information is protected under attorney-client privilege. In the event the company becomes embroiled in litigation, counsel would see such phrases and flag the messages as privileged, preventing them from inadvertently being produced to the other side during discovery.

However, while it’s a good idea to include such phrases in messages, it’s not always enough in the court’s eyes to designate it as privileged. Also, a computer’s auto-save feature may have saved versions of an email that didn’t include such phrases, leaving them unprotected. Both of these issues arose during Oracle America, Inc. v. Google, Inc.

“For each email being composed, Google’s system was saving multiple drafts of it. That’s probably something that you wouldn’t want to do,” says Jude A. Fry, a partner with Fay Sharpe LLP. “Then when the company got sued, there were, for this single email, multiple versions, and the only version put on the privileged log was the final one.”

Smart Business spoke with Fry about how companies can ensure privileged information sent through email is protected.

What happened in the Google case?

Oracle claimed Google’s Android smartphone platform infringed its patents, and the two entered into litigation. An email that included language that could be harmful to Google in the patent case was placed on a privileged log, a document describing items that can be withheld from a case under attorney-client privilege.

That internal email was sent to the vice president in charge of the Android smartphone platform at Google, copying Google’s counsel in the ‘to’ field. The email was captioned ‘attorney work product’ and ‘Google confidential.’

While the final version of the email was placed on a privileged log, auto-saves of the email were inadvertently produced to Oracle’s counsel during discovery. Since the auto-saved drafts did not include the phrases ‘attorney work product’ or ‘Google confidential,’ they were not caught by electronic scanning mechanisms.

Google demanded that Oracle return the emails under the clawback provision of the protective order, claiming the emails were privileged. Oracle returned the emails but filed a motion to compel their production. The district court ordered that the emails be reproduced.

How were the auto-saved drafts of the email not coded as privileged?

When doing the search, counsel was likely using key words to see what was coded as privileged. There were probably thousands of emails produced. Counsel was able to locate the final email because, by that point, the author had put the phrase ‘attorney work product’ in the email’s body and added the attorney as one of the recipients. However, in other auto-save versions those phrases weren’t included, so they didn’t get flagged.

What’s disturbing is that the system saved nine versions during the time it took to type it up. Why is it necessary to save all of those versions?

Consider only saving emails that are sent, and configure your email system to delete all other versions. Also, understand how your email system works — whether auto-drafts are saved, what happens to these drafts, where they’re stored. Figure this out now and not when a case is pending.

How should a corporate employee set up an email to make sure it is privileged?

Train your employees to direct the email to legal counsel in the ‘to’ field and salutation. State in the email that information is being given to or sought from the lawyer so that he or she can give legal advice. Also, include in the message that it is being prepared in anticipation of litigation, at the direction of an attorney, to further the provision of legal advice. Include headings such as ‘attorney work product,’ ‘privileged’ and ‘confidential.’ However, these headings alone will not make an email privileged, so limit the substance of the email to the legal issues.

People write a lot of emails but often don’t think about someone other than the intended recipient reading it. When doing business though email, consider who could possibly read the message and approach it accordingly. It’s a good practice to think carefully before you put something in writing.

Jude A. Fry is a partner at Fay Sharpe LLP. Reach her at (216) 363-9113 or [email protected]

Insights Legal Affairs is brought to you by Fay Sharpe LLP

How to take advantage of favorable rates for commercial real estate loans

Kim Rysyk, senior vice president, Real Estate Lending Division, Bridge Bank

Kim Rysyk, senior vice president, Real Estate Lending Division, Bridge Bank

It’s a good time to refinance a commercial real estate loan or purchase a property.

“The market has become more competitive. The big retraction of lender funds in 2008 and 2009 that resulted from increased reserve requirements and unfavorable market conditions has flipped. More banks, insurance companies and other financing sources are back in the mix and looking to lend as the economy continues to improve,” says Kimberly Rysyk, a senior vice president in the Real Estate Lending Division at Bridge Bank.

Smart Business spoke with Rysyk about the state of the lending market and opportunities that are available.

How is the current commercial real estate lending market?

It’s favorable for borrowers, as lending sources increase and interest rates remain low. Many banks have re-entered the market as their financial positions have increased along with the economy. The increase in sources has created competition, resulting in a decrease in spreads. This has translated into a drop in rates. The bottom line is that there are more lenders looking for the same deals.

What about lending for new projects?

Finding lending sources for new projects remains difficult but improved through the latter half of 2012. Cash equity of 25 to 35 percent is standard and projects with higher risk may approach 50 percent. Certain housing markets warrant new construction as demand for new housing and rents increase. Lenders are interested in those builders and developers who have been able to sustain themselves through the recession and have cash to invest. There is financing out there for speculative construction as well, provided the cash equity is sufficient and the buyer is financially strong.

For owner-occupied businesses it can make sense to find property that’s not necessarily in a top location, but in a place where they can have a brand new building suited to their specific needs that works based on debt coverage, cost of the project and cost of the land.

Is it a good time to invest in such properties?

Historically low interest rates and real estate prices still depressed from the Great Recession have created some opportunity. There has also been a slow but steady improvement in the labor market and a leveling of vacancies and rents, which are positive signs for the economy. This is a good time to invest in commercial properties if you know your market.

In San Francisco, for example, payroll tax incentives for businesses that relocate are making some areas attractive that previously were considered B-rated. This has led to big companies, such as Twitter, Zynga and Salesforce.com, to relocate to areas that were not considered desirable but are now looking up. Other companies or investors can take advantage of the depressed values here, refurbish or rebuild, and greatly affect the end value of the project. There are lenders out there who can recognize the end value and will lend on the resultant cash flow, rather than the current depressed value.

What should you consider when choosing a bank?

Strength and longevity are key. Has the bank been in the commercial real estate business through the downturn? Were they able to navigate changes in the market? An experienced banker will look at your past and future projections, uncover the pros and cons, and help you determine the best solution for your needs, whether it be building new, renovating an existing building or refinancing your current debt.

What concerns do you have for the future?

A significant swing in interest rates is concerning. Properties that were refinanced at extremely low rates may have difficulty finding refinancing sources at maturity. This concern would be heightened if the facility were not amortized or if property values do not rise sufficiently. The European financial crisis, for example, has had an effect on companies that do business on a global scale. This type of uncertainty affects the stock market, which has a strong bearing on the continued strength of the economy. Finally,  federal regulators are considering increasing the reserve requirement for real estate loans. A significant increase could chase many lenders out of the market once again.

Kimberly Rysyk is senior vice president, Real Estate Lending Division, at Bridge Bank. Reach her at (408) 556-8392 [email protected]

Insights Banking & Finance is brought to you by Bridge Bank

 

Google pact with FTC could affect other patent disputes

NEW YORK, Sun Jan 6, 2013 — While the focus of last week’s agreement between the Federal Trade Commission and Google Inc. was search, the deal’s restrictions on how Google uses its patents could have a broader impact on the technology industry.

Under the deal, which ended an antitrust investigation by the FTC and disappointed many critics, Google will make only minor changes to its search business.

But Google is also now limited in when it can seek injunctions against products from rival companies that use certain of its patents.

Throughout recent smartphone wars and other major patent litigation, holders of so-called standard essential patents have been accused of using them to bully competitors into paying high licensing rates or as leverage in patent disputes.

The FTC’s deal with Google clarifies the uncertainty over how standard essential patents can be used, said Colleen Chien, a professor specializing in patent law at Santa Clara University School of Law in California.

Google says Apple patent lawsuit dismissed

SAN FRANCISCO, Mon Nov 5, 2012 – A federal judge has thrown out a lawsuit by Apple Inc alleging that Google Inc.-owned Motorola’s patent licensing practices were unfair, Google said on Monday.

Apple had been set to square off against Motorola on Monday in a trial in U.S. District Court in Madison, Wisconsin, involving Google’s use of the library of patents it acquired along with Motorola for $12.5 billion in May.

“We’re pleased that the court has dismissed Apple’s lawsuit with prejudice,” a Google spokeswoman said in an emailed statement on Monday.

Dismissal of a case with prejudice means the case is over at the trial court level, though it can be appealed.

Apple could not immediately be reached for comment.

“Motorola has long offered licensing to our extensive patent portfolio at a reasonable and

non-discriminatory rate in line with industry standards,” Google said in its statement. “We remain interested in reaching an agreement with Apple.”

Oracle-Google judge ends probe into paid bloggers

SAN FRANCISCO, Thu Sep 6, 2012 – The federal judge overseeing a major lawsuit over smartphone technology between Oracle Corp. and Google Inc. has quietly ended his examination of those companies’ relationships with paid bloggers and other commentators.

U.S. District Judge William Alsup in San Francisco had shocked the legal and blogging communities on Aug. 7 by demanding names of “print or Internet authors, journalists, commentators or bloggers” on the companies’ payrolls.

The judge at the time expressed concern that payments might have influenced writings about the case. Legal experts questioned the breadth of the order, including whether it could violate the writers’ First Amendment free speech rights.

But in an order issued on Tuesday, after Oracle and Google had submitted lists of names, Alsup said he would “take no further action regarding the subject of payments by the litigants to commentators and journalists.”

He also said no commentaries had influenced his rulings in the case, other than “any treatise or article” he cited expressly.

Alsup has not revealed what prompted his Aug. 7 order.

Google to cut 4,000 Motorola Mobility jobs, take $275 million charge

Mon Aug 13, 2012 – Google Inc. said it would cut 20 percent of the workforce of Motorola Mobility, the money-losing cellphone maker it bought for $12.5 billion last year, and shut nearly a third of Motorola’s offices worldwide.

The news sent Google’s shares up as much as 1.5 percent and Morgan Stanley also upgraded the company to “overweight.”

Motorola Mobility has lost money in fourteen of the last sixteen quarters and in its latest quarter reported an operating loss of $233 million on revenue of $1.25 billion.

“These changes are designed to return Motorola’s mobile devices unit to profitability,” Google said in a filing with the U.S. Securities and Exchange Commission.

Google had evaded questions about its plans for Motorola Mobility when it reported quarterly results last month, saying it was yet to complete its homework on the various businesses.

“While lower expenses are likely to lag the immediate negative impact to revenue, Google sees these actions as a key step for Motorola to achieve sustainable profitability,” Google said on Monday.

Morgan Stanley said Google may bring more discipline to Motorola Mobility than was assumed.

“We see management becoming somewhat more communicative, having recently enumerated key strategic growth areas, and cancelling underperforming projects,” analysts at the brokerage wrote in a client note.

“We believe that Google is planning to reduce Motorola Mobility’s smartphone portfolio to a few reference Android devices, and perhaps a couple of tablet devices.”

Google expects to take a severance-related charge of up to $275 million mostly in the third quarter, it said in the filing.

Google, which expects to record the remaining severance-related costs by the end of 2012, said it could also incur other related restructuring charges mainly in the third quarter.

Google to pay $22.5 million to settle privacy charges: WSJ

PALO ALTO, Calif., Tue Jul 10, 2012 – Google Inc. is close to paying $22.5 million to settle charges that it bypassed the privacy settings of customers using Apple’s Safari browser, the Wall Street Journal reported, citing officials briefed on the settlement terms.
The fine would be the largest penalty ever levied on a single company by the U.S. Federal Trade Commission, the Journal said late Monday.
The charges involve Google’s use of special computer code, or “cookies,” to trick Apple’s Safari browser so Google could monitor users that had blocked such tracking, the newspaper said.
Google disabled the code after being contacted by the Journal. According to Google, tracking of Apple users was inadvertent and did not cause any harm to consumers, the newspaper reported.
“The FTC is focused on a 2009 help center page. We have now changed that page and taken steps to remove the ad cookies,” Google told the Journal.
Google also faces potential sanctions from other governments. It is being investigated by the European Union to determine if the company complies with Europe’s stricter privacy laws, the Journal reported.
An FTC spokeswoman declined to comment to the Journal.
Google and FTC could not be reached for comment by Reuters outside regular U.S. business hours.

How to keep a true aim on the moving target of SEO

Kevin Hourigan, President and CEO, Bayshore Solutions

Caffeine, panda and penguin are terms that seem unrelated to most businesses, but for digital marketers they have induced flurries of action and emotions ranging from pride to panic. These are the code names given in the past few years to three major updates of Google’s website search ranking algorithm.
Businesses that were hit by these updates typically suffered losses in Google rank from being in the top three on page one to getting buried on page 50 or beyond, search engine traffic dropping by more than 70 percent overnight and significant losses in revenues. Each update created a fundamental shift in how Search Engine Optimization tactics either benefitted or harmed a business’s ability to be found — and more importantly, found at the top of the results — in Google searches by their target customers.
“Search Engine Optimization and Marketing are dynamic and rapidly changing specialties that businesses need to keep pace with,” says Kevin Hourigan, president and CEO of Web design, Web development and online marketing agency, Bayshore Solutions. “The key to staying ahead of the curve is to have a comprehensive and connected strategy with your marketing, website and SEO.”
Smart Business spoke with Hourigan about how to keep your online marketing and SEO driving top search engine results, leads and sales growth for your business.

How do I stay ahead in SEO?

The recent SMX Advanced Conference in Seattle, one of many Web industry educational events, offered practical insight and in-depth education on the latest search marketing trends, technology and best practices. One session featured a Q&A with Matt Cutts, Google’s most known insider and spokesman on search quality and algorithm matters. This very popular session revolved around the impact of Google’s latest algorithm update, called Penguin, and what kinds of SEO behaviors and tactics are being either rewarded or demoted in their search engine rankings as a result.
This scenario of face-time with Matt Cutts has been featured at search industry conferences for many years. While the tactical details keep changing, the central message Cutts delivers is the same: Google continuously seeks to return the highest quality and most relevant results to people for the keywords they use in a search.
As SEO practitioners of varying ethical orientation develop practices for attracting high search rankings and traffic for their client’s websites, Google’s algorithm adjusts to keep those results relevant and offer credible answers for searchers. What was once seen as a SEO best practice could now be a very real detriment. So it is essential that the person you entrust with the SEO for your business is not only a competent tactician, but is up to date with today’s best practices.

Why isn’t covering the SEO basics enough?

The SEO building blocks of appropriately using of keywords, metadata and link strategy used to be the complete tactical toolset, but are now just the first steps. In a very simplified nutshell, three recent major Google algorithm updates addressed these ‘Quality of search’ experience issues:

  • Caffeine: Focused on recency or ‘freshness’ of information available, incorporating rapidly updated content such as Facebook and Twitter posts. This heralded a new tactical approach to Social Media and SEO.
  • Panda: This focused on the quality of the user experience, including page design and user interface, website content quality seen from human versus algorithmic ‘eyes’ and site usage metrics that signal usefulness and popularity of a website with searchers. This caused a paradigm shift for SEOs to balance tactics with design, development and audience communication or consumer psychographics measures.
  • Penguin: Focused on quality of content and particularly on devaluing websites containing linking schemes, duplicate content and using blog and article networks that post low-quality content with commercialized links. This creates a major change in the kind of linking tactics a business can successfully use and significantly changes content marketing distribution and syndication throughout the Internet.

These algorithm updates increasingly emphasize that implementing SEO in a silo is a sure path to online marketing failure. Your SEO experts now need to be Web strategy experts. They need to have a strong understanding beyond classic optimization of all your marketing elements including how they interact and how to strike an ongoing balance among them to align with search and marketing best practices.

Where does this fit in my overall sales and marketing strategy?

There are many technical complexities and best practices to stay abreast of in SEO and online marketing. That said, it is essential that your SEO implementation is driven by a strategy that is connected with your Web design, website functionality, customer service and audience communications strategies both online and offline.  Be sure that any Web marketing partners clearly communicate the tactics they use on your behalf, and that all your online tactics promote the best possible user experience of your brand and business.
The people in your Web audience are more important than search engine crawlers because they are the ones who can get excited about your brand, share your message, lift your legitimacy in today’s search engines and become your customers.  As we are seeing through recent search algorithm updates, technology is enabling search engine crawlers to ‘see’ and evaluate experience more and more like their human website-visiting counterparts. So the best way to win the SEO game is to present a Web experience that wins the confidence, trust and business of your customers.

Kevin Hourigan is the president and CEO of Bayshore Solutions. Reach him at (877) 535-4578 or http://www.BayshoreSolutions.com. For a snapshot of Bayshore Solutions Web marketing methodology, visit: http://www.bayshoresolutions.com/about-bayshore-solutions/methodology.aspx.

Insights Web Design, Development & Internet Marketing is brought to you by Bayshore Solutions

Apple, Google to face off in key smartphone hearing

CHICAGO, Wed Jun 20, 2012 – Apple Inc. will try to salvage a high-profile lawsuit against Google Inc.’s Motorola Mobility unit on Wednesday at a crucial hearing in the smartphone patent wars between the two tech companies.

Federal Judge Richard Posner in Chicago will hear Apple argue why it should be able to seek an order barring the sale of some Motorola phones. Posner’s decision could affect the iPhone maker’s ability to negotiate favorable licensing agreements in its legal fights against Motorola and other competitors like Samsung Electronics Co. Ltd.

Apple has waged an international patent war since 2010, part of its attempt to limit growth of Google’s Android, the world’s best-selling mobile operating platform. Opponents of Apple, meanwhile, say it is using patents too aggressively in its bid to stamp out the competition.

Motorola sued Apple in October 2010, a move widely seen as a preemptive strike. Apple filed its own claims against Motorola the same month.

Posner issued a series of pretrial rulings that eliminated nearly all of Motorola’s patent claims against Apple, while maintaining more of Apple’s claims against Motorola. That meant Apple had more to gain at the trial, which had been set to start last week.

Yahoo hires former Google director to lead ad revenue

SAN FRANCISCO, Mon Jun 18, 2012 – Yahoo Inc. has hired former Google director and media veteran Michael Barrett to help lead its efforts to re-emerge as an entertainment and information destination that wins advertising revenue.

Barrett, who will take the title of Chief Revenue Officer, is one of new interim CEO Ross Levinsohn’s first key appointments, underscoring signs that Yahoo – a company that has suffered from strategy flip-flops under successive CEOs – is now thinking of itself as more of a media company than a technology company.

Those close to Levinsohn have said he is committed to building out Yahoo’s own video programming and striking more syndication deals in pursuit of ads that command a higher price.

This will be the second time that Barrett and Levinsohn have worked together. Both were once at Fox Interactive Media where Barrett also held the title of Chief Revenue Officer and oversaw worldwide revenue for properties including MySpace and FoxSports.com.

Barrett was most recently at Google where he led integration efforts following the acquisition of digital advertising platform Admeld Inc. where he served as CEO.

He will assume his new position in July and be responsible for Yahoo’s ad revenue and operations globally.