Google on Ulitzer

Google lost a bid Monday to suppress evidence that it willfully infringed on Oracle's IP in building Android.

On July 21, during the Daubert hearing Google wanted, District Court Judge William Alsup, who's presiding over the Oracle v Google Java case, read into the record an e-mail written by Google engineer Tim Lindholm in August 2010, right before Oracle sued Google, saying that at the direction of Google co-founders Larry Page and Sergey Brin alternatives to Java had been explored, that they all "sucked," and that "We conclude that we need to negotiate a license for Java under the terms we need." 

The judge told Oracle, "That's a pretty good document for you. That ought to be big for you at trial." And he told Google, "You are going to be on the losing end of this document." 

At that hearing the judge dismissed any notion of confidentiality when he told Google, "You say whatever you want. If Google has a memo in their file saying we are about to infringe there is no way I'm going to keep that secret from the public or the investing public." 

Although not a single Google attorney objected at the time, Google thought the better of it and last Thursday petitioned the court to redact those parts of the hearing transcript repeating the Lindholm exchanges and seal the part of judge's own order quoting the e-mail, claiming attorney-client privilege and alleging Oracle had breached their protective order by introducing a binder of "excerpts from various documents" including "many that Google had designated "Confidential" or "Attorney's eyes Only."

 Monday Judge Alsup flatly told Google "No." 

As it turns out the e-mail in question was an incomplete draft of a message that was never sent to anyone and according to the judge "not a communication of any type, much less a communication protected by attorney-client privilege." 

A final version of the e-mail was sent to Google's in-house lawyers and marked "Attorney Work Product." But Judge Alsup didn't think much of that argument either, saying, "Simply labeling a document as attorney work product or sending it to a lawyer does not automatically trigger privilege." 

In his opinion, "Google has provided no indication that the disputed document is in fact subject to the claimed attorney-client privilege." So the record stands.