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
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
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)
Follow Alison on Twitter: @AlisonFrankel
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