Judge Won’t Toss Pivotal Email in Java Patent Suit

SAN FRANCISCO (CN) - Google cannot redact an email exchange in which its engineer says that the technical alternatives to Java "all suck," a federal judge ruled Monday in the ongoing litigation over the use of Oracle's patented Java programs in Google's Android phones.

Google attorneys claimed Oracle breached their protective order by introducing a binder at a July 21 motion hearing without prior notice. U.S. District Judge William Alsup read an email from the binder in which a Google engineer told Google President and CEO Andy Rubin that the technical alternatives to using Java for Android "all suck" and stating, "We conclude that we need to negotiate a license for Java under the terms we need."

The document supports Oracle's argument that Google willfully infringed on Java patents owned by Oracle in the development of Google's Android operating system and products.

After chiding Oracle attorney Steven Holtzman for trying to keep the exchange from the public, Alsup informed Google counsel that, at trial, "You are going to be on the losing end of this document."

Google had claimed the email is protected by attorney-client privilege. Alsup disagreed, noting that the document in question is an incomplete draft of an email message and was never sent to anyone. "The document is not a communication of any type, much less a communication protected by the attorney-client privilege," the two-page order states.

Google also argued that the document "is indisputably privileged, because the final version of the document, which appears on Google's privilege log, was sent to, among others, Google's in-house attorneys, and was also prominently marked 'Attorney Work Product.'"

Alsup called the argument "unavailing," noting that "the supposedly privileged status of a different document has no bearing on whether this document is protected by the attorney-client privilege." He also noted that "simply labeling a document as attorney work product or sending it to a lawyer does not automatically trigger privilege."

Alsup concluded that "Google has provided no indication that the disputed document is in fact subject to the claimed attorney-client privilege. Allowing Google to file its proposed motions would be futile."

Google has requested leave to file a motion to redact a hearing transcript and a motion to seal a portion of Alsup's July 22 order, which threw out the majority of a damages report submitted by an Oracle expert.

In a letter submitted last week supporting its request, Google attorneys claimed Oracle did not notify Google that they were going to use the protected material in the hearing, as required, in his letter to the court seeking leave to ask the court to redact portions of Alsup's July 22 order.

Instead, the document appeared in a binder with excerpts from other various documents "that were not part of [Oracle's] filed opposition and not part of the record," including many Google had designated as confidential.

In response, Oracle attorneys claimed the record establishes that the document is neither privileged nor confidential; that Google's invocation of the protective order is "selective and inaccurate," that Oracle complied with all court orders, and that the court should therefore deny Google's request and hold that no privilege applies to the document.

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