Google Still Says Telling Email Is Confidential

     SAN FRANCISCO (CN) – Google has tried once again to seal an email draft in which its engineer says that the technical alternatives to Java “all suck” – a damaging bit of evidence in the ongoing litigation over the use of Oracle’s patented Java programs in Google’s Android phones.
     Google attorneys filed a motion for relief from a magistrate judge’s ruling finding that privilege for business negotiations did not protect the exchange between engineer Tim Lindholm, Google in-house counsel and others.
     Citing the Supreme Court decision in Upjohn Co. v. United States, Google says corporate counsel may communicate confidentially with low- and mid-level employees when investigating possible legal claims against the company since these employees often possess the knowledge attorneys need to offer sound advice.
     The search-engine company claims U.S. Magistrate Donna Ryu was merely speculating, “without evidentiary support,” that the email “could” concern ordinary, nonprivileged business matters, rather than its internal investigations of Oracle’s infringement claims. Ryu ruled that Google had failed to disprove that possibility by submitting evidence linking the email to its investigation.
     Google says the engineer and Google in-house counsel Ben Lee did just that with their declarations and by “specifically refuting the magistrate’s speculation that the email was intended to convey ordinary business information.”
     Ryu also ignored the fact that the email was addressed to a Google attorney, that it said “Attorney Work Product” and “Google Confidential” at the top, and that it concerned an attempt to investigate alternatives to the very technology that Oracle had accused Google of infringing, according to the motion filed by Google attorney Robert Van Nest.
     Google says Ryu’s approach to assessing privilege claims is contrary to Upjohn because it “effectively strips privilege from communications by lower- and mid-level employees to corporate counsel unless those employees are sufficiently savvy and detail-oriented to include specific references to the legal investigation in each of those communications.”
     Under Ryu’s approach, the failure to include such references in each communication cannot be remedied later by declarations explaining the connection between the communications and the legal investigation.
     The damaging email came to light when Oracle included it in a binder it introduced at a July 21 hearing without prior notice. U.S. District Judge William Alsup read an email from the binder in which Lindholm told Google President and CEO Andy Rubin that the technical alternatives to using Java for Android “all suck.” “We conclude that we need to negotiate a license for Java under the terms we need,” the letter continued.
     Google claimed that Oracle introduced this binder in breach of a protective order. Alsup ruled, however, that it was not privileged and denied two requests from Google to strike the email exchange from the public record.
     Ryu later granted Oracle’s motion to compel production of the document. Alsup struck Google’s first motion in opposition from the record as unauthorized. In the second motion filed Monday, Google asked the court to classify the email as privileged.
     Also on Monday, Google defended its motion to strike part of an expert report in which Oracle identifies products and files, not previously disclosed to the court, as central to its patent-infringement allegations. Google claimed in the most recent brief that all allegations that relate to those products and files should be stricken from the report. Oracle conceded that the products and files were not explicitly disclosed in its infringement contentions, according to the brief, and local patent rules prohibit the introduction of new infringement theories without leave from the court.

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