As promised, Google's lawyers at Keker & Van Nest have asked the U.S. Court of Appeals for the Federal Circuit to consider the all-important question of whether a damning email sent by a Google engineer should be included in the record in Oracle's Java copyright and patent-infringement case. You remember the email: The engineer, Tim Lindholm, told the Google VP in charge of the Android operating system that he'd considered various technical alternatives to Java, and concluded that "they all suck." He recommended taking out a license on Java software, which Google nevertheless opted not to do.
U.S. District Judge William Alsup of San Francisco federal court has ruled no fewer than three times that the email belongs in the record, despite Google's arguments that it's protected by attorney-client privilege and was improperly disclosed by Oracle. Alsup went so far as to quote the email in its entirety in one of his rulings, then pointed to his own disclosure in a subsequent ruling that it was too late for Google now to argue that the email should stay confidential. The Lindholm email is now notorious (and ubiquitous on the web).
But that hasn't stopped Google from attempting to cram the toothpaste back into the tube. Keker filed a writ of mandamus at the Federal Circuit, which doesn't seem to be publicly available. The appellate court did, however, issue a Nov. 8 order disclosing Google's filing and directing Oracle to reply by Nov. 28. The order said that Google wants the Federal Circuit to confirm that the Lindholm email and all drafts of it are privileged and to seal all references to the email's contents in the Oracle case record.
This is a novel issue for the Federal Circuit. The appellate court has issued a series of mandamus opinions in recent years, but they've almost all addressed venue rulings by Texas federal judges who refused to transfer cases with only a tenuous connection to their jurisdiction. The Federal Circuit very rarely considers the issue of attorney-client privilege. Its best-known ruling on the question, 2007's In Re Seagate, was much more closely tied to the patent at issue; the court considered whether the privilege shielded materials a legal expert for the defense considered when he wrote an opinion on the defendant's alleged willfulness.
The Federal Circuit does not have to grant Google's interlocutory appeal, though its Nov. 8 order means that the appellate judges are at least interested in what Oracle has to say. Even if the court does agree to hear the case, Google's got a very high bar to clear. A writ of mandamus is considered a drastic and extraordinary remedy, to be granted only when judges have willfully abused their power. Regarding the admissibility of the Lindholm email, Alsup has the backing of the magistrate judge who's ruled the same way as he did. It will be tough for Google to show the appeals court that both judges committed drastic mistakes.
(Reporting by Alison Frankel)
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