New Brief Seeks to Seal Google’s Telling Email

SAN FRANCISCO (CN) - Google attacked Oracle and a magistrate judge in its continued attempt to erase an email in which a Google engineer says the 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 has tried to have the email ruled inadmissible by linking it to its legal investigation of Oracle's infringement claims, but Oracle has undermined that maneuver by saying Google is referring to some other, hypothetical email.

In the latest brief filed with the court, Google calls this argument "ridiculous."

"Oracle never identifies this other, mystery email - nor could it, since the entire argument is a fiction," Google lawyer Robert Van Nest wrote.

Oracle has merely tried to "distract" the court from legal errors made by U.S. Magistrate Judge Donna Ryu who held that the email was not protected by attorney-client privilege, Van Nest added.

Ryu's ruling violates principles laid down in Upjohn Co. v. United States by "stripping privilege from communications between low-level employees and corporate counsel unless the employee includes specific references to threatened litigation in each of those communications," according to the brief.

Once a company has failed to include such references in each communication, a company should be able to explain the connection between the communications and the legal investigation with declarations, but Ryu's approach does not allow this, according to Google.

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.

Late last week, Google also filed a second motion to strike part of Oracle expert John Mitchell's report after Alsup tossed part of it in an earlier ruling, finding the report "extends to accused products and infringement theories that were not disclosed in Oracle's April 2011 infringement contentions."

In the new motion, Google accuses Mitchell of once again adding new theories to Oracle's infringement contentions.

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