Google Still Can’t Redact Telling Email, Court Says

     SAN FRANCISCO (CN) – A federal judge rejected Google’s second request to redact a draft of an email in which its engineer says that the technical alternatives to Java “all suck” in the ongoing litigation over the use of Oracle’s patented Java programs in Google’s Android phones.
     U.S. District Judge William Alsup held that the request is both “untimely” and “does not establish any of the grounds for reconsideration” set forth in local rules.
     Alsup also denied Oracle’s request that he issue an order compelling Google to produce the document “forthwith.” Oracle does not explain in its request why it has asked Google to reproduce the document twice when the document already was made available. Alsup further notes that all discovery reports have been referred to U.S. Magistrate Donna Judge Ryu in Oakland.
     Google attorney Bob Van Nest had requested the opportunity to present Aslup in camera with evidence showing the email draft is “subject to the attorney-client privilege and/or the attorney work-product doctrine.”
     Specifically Van Nest wanted to provide Alsup with a copy of the final version of the email so he could compare it with the draft. The Keker & Van Nest partner also had a declaration from the engineer explaining the circumstances under which he prepared the draft and the final email.
     The engineer, Tim Lindholm, would explain that he prepared the draft after Oracle lawyers made a presentation in late July 2010 to Google in-house lawyers laying out Oracle’s infringement claims. Google General Counsel Kent Walker then called a meeting and asked Lindholm and other engineers to gather information for the consideration of Google’s legal team and management.
     Thus the email draft was “written at the behest of and in coordination with Google’s lawyers, and constituted a privileged communication to them in anticipation of this lawsuit,” the letter states.
     Van Nest argued that “preliminary drafts of privileged communications, can, themselves, be privileged” and that the draft and final email were privileged because they were “an outline of what Google management and employees intended to and did discuss with their counsel during their subsequent conference.”

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