SAN FRANCISCO (CN) – A federal judge denied Google’s latest attempt to make confidential an email in which an engineer says the alternatives to Java “all suck” – a damaging bit of evidence in litigation over the use of Oracle’s patented Java programs in Google’s Android phones.
U.S. District Judge William Alsup wrote that “simply labeling a document as privileged and confidential or sending it to a lawyer does not automatically confer privilege.” The ruling came in Alsup’s 15-page order denying Google’s motion challenging Magistrate Judge Donna Ryu’s finding that the document is not privileged.
In the email, Google engineer Tim Lindholm told the Google vice president in charge of Android, Andy Rubin, and house counsel Ben Lee that engineers had looked for alternatives to Java and “they all suck. We conclude that we need to negotiate a license for Java under the terms we need.”
Oracle sued Google 6 days after the email was sent.
Alsup rejected Google’s many new arguments, finding that the email was “directed to Rubin” and that though Lee’s name appeared in the “To” field, there was no evidence that he read it or responded, “much less used it in constructing any legal advice.” Alsup also agreed with Ryu that Google employees other than lawyers directed the research into negotiating for a license.
Alsup also rebuffed Google’s claim that the email was litigation-related.
“Not so,” Alsup wrote. “The challenged order cited copious record facts, including the text of the email itself, as suggesting that the email may have concerned a different matter. For example, the order noted that the email referenced Chrome, a Google product that was not mentioned at the meeting with Oracle’s lawyers and which has played no role in this litigation.”
The damaging email came to light when Oracle included it in a binder it introduced, without notice, at a July 21 hearing. Alsup read the email from the binder.Google claimed that Oracle introduced the binder in breach of a protective order. But Alsup ruled that it was not privileged, and denied two requests from Google to strike the email exchange from the public record