(CN) - A federal judge refused, again, to make confidential an email in which a Google engineer says the alternatives to Java "all suck" as a trial approaches on whether Google's Android phone infringes on Oracle's patented Java applications.
In an earlier ruling on the same issue, U.S. District Judge William Alsup said that "simply labeling a document as privileged and confidential or sending it to a lawyer does not automatically confer privilege."
The contested email documents Google engineer Tim Lindholm telling the Google vice president in charge of Android, Andy Rubin, and house counsel Ben Lee that engineers had looked for alternatives to Java, but "they all suck. We conclude that we need to negotiate a license for Java under the terms we need."
Oracle sued Google six days after the email was sent.
Google attorney Robert Van Nest said Oracle had violated the court's protective order, adding that Google will appeal Alsup's decision because the emails should remain confidential.
"The unfortunate fact that the contents of the contested documents were partially published before the court even ruled upon Google's privilege claim is therefore solely the result of Oracle's violation of the agreed-upon process, and should not be considered as a reason for denying Google relief under the protective order," Van Nest wrote in the motion.
Alsup ruled Wednesday that Google did not argue that the publication of the email violated the court's earlier protective order, or that the publication "was somehow tainted by Oracle's earlier supposed violation."
"This order finds that the Lindholm email and drafts are not subject to protection under the protective order because they became part of the public domain on October 20 via a publication that did not violate the protective order," Alsup wrote.
The disputed emails will not be treated as either privileged or confidential, and the judge ordered Google to produce new copies of the documents for Oracle without a "Privileged & Confidential" footer.
The judge vacated a hearing on the matter that was set for Nov. 17.
Oracle also submitted a reply brief opposing two of Google's experts, calling Google's approach "fundamentally subjective and scientifically unsound."
The expert reports by Drs. Gregory Leonard and Alan Cox relied on interview statements with Google employees that were contradicted by the evidence on record, Oracle's attorney Steven Holtzman said.
"When an expert ignores extensive record evidence to rely uncritically on interviews with 'highly partisan' employees of the client, the opinion fails the standards for admissibility," Holtzman wrote.
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