Judge: Email in Oracle-Google case will remain public

The email from a Google engineer could be damaging to Google's defense

The judge overseeing the lawsuit Oracle filed over the Android mobile OS has denied Google's attempt to get a potentially damaging e-mail redacted.

"What we've actually been asked to do by Larry and Sergey is to investigate what technology alternatives exist to Java for Android and Chrome," Google engineer Tim Lindholm wrote in the Aug. 2010 e-mail, in reference to Google co-founders Larry Page and Sergey Brin. "We've been over a hundred of these and think they all suck. We conclude that we need to negotiate a license for Java."

Oracle sued Google in August 2010, alleging that Android violated a number of patents held by Oracle on the Java programming language, which it acquired through the purchase of Sun Microsystems. Google has denied any wrongdoing.

The e-mail was revealed last month during a hearing on whether the conclusions of Oracle's damages expert should be set aside.

"You are going to be on the losing end of this document" if the e-mail ends up being revealed to a jury, Judge William Alsup told Google's attorney during the hearing.

In a court filing last week, Google called the e-mail an incomplete draft message that was subject to client-attorney privilege and wrongly revealed by Oracle in violation of a protective order. It asked Alsup for permission to file two motions that would redact the information from court documents.

But Alsup ruled that the e-mail was not subject to such protection in a ruling filed Monday in U.S. District Court for the Northern District of California.

"Attorney-client privilege protects communications made between an attorney and his or her client for the purpose of obtaining legal advice," Alsup wrote. "Google states that the addressee field of the draft message is blank, indicating that the draft never was sent to anyone. Thus, the document is not a communication of any type, much less a communication protected by the attorney-client privilege."

Google had also argued that the final version of the e-mail draft had been sent to Google's in-house lawyers as well as labeled "attorney work product," and therefore was "indisputably privileged," Alsup added.

"Simply labeling a document as attorney work product or sending it to a lawyer ... does not automatically trigger privilege," he wrote.

Since Google has provided no concrete evidence the e-mail falls under attorney-client privilege, allowing it to file its motions "would be futile," Alsup added.

Chris Kanaracus covers enterprise software and general technology breaking news for The IDG News Service. Chris's e-mail address is Chris_Kanaracus@idg.com

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