New York Legal

The most-litigated email message in American jurisprudence has once again been deemed a public document.

On Monday, the U.S. Court of Appeals for the Federal Circuit denied Google's petition for a writ of mandamus, squelching the Android maker's latest attempt to hide an email that's powerful evidence for Oracle in its Java infringement case against Google. As I've explained, Google's lawyers at Keker & Van Nest, King & Spalding, and Greenberg Traurig asked the Federal Circuit for a ruling that the judge overseeing Oracle's case, U.S. District Judge William Alsup of San Francisco federal court, abused his discretion in ruling (repeatedly) that a draft email from Google engineer Tim Lindholm isn't shielded by attorney-client privilege, even though one of the email recipients was a Google in-house lawyer. (You remember the email: Lindholm told Android project chief Andy Rubin that he'd checked out technical alternatives to Java, "and think they all suck .... We conclude that we need to negotiate a license for Java.")

Google argued in Federal Circuit briefs that Alsup and San Francisco federal magistrate Donna Ryu didn't pay enough deference to the U.S. Supreme Court's 1981 opinion in Upjohn v. United States, which held that privilege applies to communications about legal strategy between a corporation's in-house lawyers and its employees. Google said Alsup improperly expanded the reach of a D.C. Circuit opinion called In re Sealed Case, which requires a "clear showing" that communications with in-house lawyers must involve legal questions in order to be shielded by privilege.

The Federal Circuit panel (Judges Alan Lourie, Sharon Prost, and Kimberly Moore) said there was "no merit" to Google's argument. The Lindholm email chain included a lawyer, the Federal Circuit found, but was clearly not a discussion of legal strategy prepared in advance of litigation, as Google contended. To the contrary, Lindholm said that he had checked out Java alternatives at the direction of Google management, and the email was addressed to an exec on the technical side.

"The email's discussion is directed as a negotiation strategy as opposed to a license negotiation as a component or legal strategy," Moore wrote in the appellate order. "The email does not evidence any sort of infringement or invalidity strategy."

I once joked that the Lindholm email fight wouldn't be over until the U.S. Supreme Court has had a say. That may not be quite as far-fetched as it seemed.

Oracle was represented at the Federal Circuit by Boies, Schiller & Flexner and Morrison & Foerster. An Oracle spokesperson declined comment. Google's press office didn't respond to a request for comment.

(Reporting By Alison Frankel)