Google Wants E-Mail in Android Suit Redacted

Google wants the judge overseeing the lawsuit Oracle filed over the Android mobile OS to redact a potentially damaging e-mail written by a Google employee, saying it was supposed to remain confidential and that Oracle wrongly revealed it.

By Chris Kanaracus
Fri, July 29, 2011

IDG News Service — Google (GOOG) wants the judge overseeing the lawsuit Oracle (ORCL) filed over the Android mobile OS to redact a potentially damaging e-mail written by a Google employee, saying it was supposed to remain confidential and that Oracle wrongly revealed it.

Oracle sued Google in August 2010, alleging that its Android mobile OS violated a number of patents Oracle holds on the Java programming language, which it gained through the purchase of Sun Microsystems.

"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, referring to Google 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."

The e-mail's contents were revealed last week during a hearing on whether the findings of Oracle's damages expert should be set aside.

"You are going to be on the losing end of this document" if its contents are revealed to a jury, Judge William Alsup told Google's attorney during the hearing.

"That's a pretty good document for you," Alsup said earlier to Oracle's lawyer. "That ought to be big for you at trial."

Google, however, doesn't want such a potential smoking gun to make it that far.

"This situation would not have arisen but for Oracle's violation of the protective order in this matter," Google attorneys wrote in a filing late Thursday in U.S. District Court for the Northern District of California. "The inadvertently-produced document was marked 'HIGHLY CONFIDENTIAL -- ATTORNEY'S EYES ONLY and ... the protective order specifically states that '[p]arties shall give the other parties notice if they reasonably expect a deposition, hearing or other proceeding to include Protected Material. Oracle provided no such notice prior to the hearing."

Instead, Oracle showed up at the hearing "bearing a binder of excerpts from various documents that were not part of its filed opposition and not part of the record," it adds.

Oracle also implied that Lindholm's e-mail had actually been sent, but in fact it was an incomplete draft, Google added.

Oracle filed a response to Google's letter later on Thursday, attacking its arguments on several grounds.

For one, last week's hearing wasn't the first time the Lindholm e-mail was discussed, as it also came up during a discovery hearing with a different judge earlier that day, Oracle said.

The judge "asked Oracle's counsel to identify documents showing the need for Mr. Lindholm's deposition," according to Oracle's filing. "In response, Oracle's counsel referred to the Lindholm document. At the discovery hearing and [the hearing related to the damages expert], Google counsel demonstrated that they were already familiar with the document, discussed its substance with the Court, and made no claim of privilege."

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