Back in July, which seems like light-years ago in Oracle's
Java software patent and copyright infringement suit against
Google, U.S. District Judge William Alsup of San Francisco
federal court read aloud in open court portions of a seemingly damning August 2010 e-mail from Google engineer Tim Lindholm.
Lindholm had written to Andy Rubin, the Google vice-president
in charge of the Android operating system, that he'd checked
out technical alternatives to Java, "and think they all suck,"
the email said. "We conclude that we need to negotiate a
license for Java under the terms we need."
Google, of course, didn't negotiate a license, which is why
Oracle soon thereafter filed its sweeping suit. Alsup warned
Google at that July hearing that the Lindholm email was going
to be trouble if the case went before a jury. "You are going to
be on the losing end of this document," the judge said.
In the three months since, Google and its lawyers at Keker
& Van Nest have fought like hell to get the Lindholm email out
of the record. They have lost at every turn. Alsup has now
ruled on three different occasions that the email isn't
protected and should stay in the public record. His magistrate
judge, Donna Ryu, has also found that the email isn't shielded
by attorney-client privilege. You might think that Google would
get the message -- particularly because in his Oct. 20 decision, weighing in at an un-Alsupian 15 pages, the judge
reproduced the entire text and history of the Lindholm email.
But like a candy-crazed toddler who really, really doesn't
want to go to bed, Google seems to think that if it asks over
and over for the same thing, it will eventually get the answer
it wants. On Nov. 1, Keker & Van Nest indicated in a brief to Alsup that it intends to request that the U.S. Court of Appeals
for the Ninth Circuit review the matter of the Lindholm email
-- sort of like asking Grandma to overrule Mom and Dad. Who
knows? By the time this case gets to its delayed trial date in
2012, Google may have taken the Lindholm email to the U.S.
To be fair, Google's arguments about attorney-client
privilege and alleged violation of a protective order are not
silly (or, at least, weren't silly when Google first raised
them). Immediately after Oracle's lawyers first referred to the
email at separate hearings before Alsup and Ryu in July, Google
asserted that the document was shielded by privilege. The email
included an "attorney work product" heading, and its recipients
included a Google lawyer. Moreover, Google argued, Oracle had
gotten drafts of the email by mistake, and had improperly
disclosed materials that were clearly marked "Highly
Confidential-Attorneys' Eyes Only."
In his first ruling on the email in August, Alsup said that
the draft Oracle originally disclosed was not privileged, by
definition, since it wasn't actually sent to anyone. "Thus, the
document is not a communication of any type, much less a
communication protected by the attorney-client privilege," the
judge wrote. "Simply labeling a document as attorney work
privilege or sending it to a lawyer (measures which, in any
event, were not taken with respect to the document in question)
does not automatically trigger privilege." Alsup denied
Google's motion to seal a hearing transcript and ruling that
included his references to the damning document.
The magistrate then took up the issue of whether Oracle
could continue to use the Lindholm email -- including the
actual message that was sent to the Android VP, and not just
drafts -- in the infringement litigation. After full briefing,
she concluded on Aug. 26 that the email was not privileged and
ordered Google to turn over the actual message and all drafts
to Oracle. That's the ruling Alsup endorsed in the Oct. 20
decision in which he reproduced the email in its entirety.
Google, however, had a pending motion asking to keep the
email under a confidentiality order. Oracle suggested that
Google drop the motion, given the judge's ruling that the
document isn't protected. Google refused. Because it intends to
appeal Alsup's order, Google said, it had to take all
reasonable steps "to prevent the disclosure of the information
Google contends is privileged and confidential." And besides,
Google added (by way of beating a dead horse), the email never
would have become public if Oracle hadn't improperly disclosed
it in the first place.
I bet you can guess what Alsup made of that argument. On
Wednesday, in his third ruling on the Lindholm email, the judge
said his own publication of the entire email in the Oct. 20
order -- which Google did not challenge as improper -- meant
that the document is in the public domain. (It should probably
go without saying that a Google search of "Lindholm email"
pulls up thousands of hits, many of which reproduce the email's
text in full.) "The Lindholm email and drafts shall be treated
as neither privileged nor confidential in this action," Alsup
wrote. "Accordingly, Google must produce to Oracle new copies
of those documents without the 'Privileged & Confidential'
footer that was added for production."
Next stop, the Ninth Circuit.
Google counsel Robert Van Nest declined comment in an
e-mail. An Oracle spokesperson also declined comment.
(Reporting by Alison Frankel)
Follow Alison on Twitter: @AlisonFrankel
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