Google Documents Sought in Suit Over Pact to Not Hire Rivals

Employees suing Google Inc., Apple Inc. and Intuit Inc. over claims they broke antitrust laws by agreeing to not recruit from each other are demanding to see documents involving Bill Campbell, who has ties to all three companies.

Lawyers for the employees asked a magistrate judge in San Jose, California, to force Google to turn over messages and other communications between the search engine company’s employees and Campbell, who is now chairman of Intuit. Google argues the documents are protected by attorney-client privilege.

The documents “were not made for the purpose of seeking legal advice” and they “were not privileged in the first place,” plaintiffs lawyer Dean Harvey said at a hearing today.

The dispute is the latest over information sharing, or discovery, in a lawsuit filed in 2011 against seven technology companies. The other defendants are Intel Corp. Adobe Systems Inc., Walt Disney Co.’s Pixar animation unit and Lucasfilm Ltd.

Discovery has confirmed that senior officers at the companies personally entered into non-solicitation agreements to eliminate competition for each other’s employees, kept the pacts hidden from the workers, supervised the implementation of the plans, and policed each other, plaintiffs said in court filings.

‘Primary Actor’

Campbell was a “co-conspirator of Google” and “primary actor and central participant in the defendants’ illegal activity,” according to a court filing by the employees. Campbell is former chief executive officer of Intuit, serves on Apple’s board and has been an adviser to Google for several years.

The case mirrors claims the companies settled with the U.S. Justice Department in 2010 after the government alleged that the companies kept do-not-call lists to avoid competitive recruiting, and that such agreements restrained competition, which hurt employees.

Lawyers for the employees have argued that while the settlement with the federal government exposed the illegal behavior and put an end to it, the agreement didn’t compensate the employees who were harmed.

Campbell’s Role

U.S. Magistrate Judge Paul Grewal said at today’s hearing that he’s interested in what role Campbell has played at Google, which may determine whether the communications at issue must remain confidential.

“Only a few” of the 166 documents the employees seek involved Campbell’s lawyer, and even those didn’t involve legal advice, Harvey said.

Google’s lawyer, Donald Falk, told the judge Campbell is a “management guru” and “strategic guide” to Google, who is sometimes included in executive meetings. Campbell hadn’t signed a consulting agreement with Google until 2007 and doesn’t work “solely” at the company, though he has been compensated by Google and there is a “record of performance” dating back to 2002, Falk said.

“The communications speak for themselves,” Falk told Grewal. “Of course legal advice is given -- it must be given in the course of business operations -- that’s exactly what was happening here,” he said. “The level of advice is consistent with his position of former CEO of Intuit in the 1990s and chairman since.”

Both sides are waiting for U.S. District Judge Lucy H. Koh to rule whether the case will proceed as a group lawsuit, with a proposed class of employees including engineers, sous chefs, administrative assistants and others.

The San Jose case is In Re High-Tech Employee Antitrust Litigation, 11-2509, U.S. District Court, Northern District of California (San Jose). The previous case is U.S. v. Adobe Systems, 10-cv-1629, U.S. District Court, District of Columbia (Washington).

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