Judge refuses to exclude troublesome Google email

Google has been trying to get the email, which came to light as part of Oracle's lawsuit against it, removed from the record

Google has lost its appeal to keep a potentially damaging email away from the jury in the company's legal fight with Oracle over Java.

Judge William Alsup, who is hearing the case, on Thursday upheld an earlier ruling that the email should remain part of the court record. The email, written by a Google engineer, suggests that Google knew it needed a license to use Oracle's Java technology in Android.

Oracle accuses Google of infringing its Java patents and copyrights in the Dalvik virtual machine software in Android. Oracle took control of Java when it bought Sun Microsystems last year.

"What we've actually been asked to do (by Larry [Page] and Sergey [Brin]) is to investigate what technical alternatives exist to Java for Android and Chrome," says the email, from Google engineer Tim Lindholm. "We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."

Google has argued since July that the email is privileged and that it provided it to Oracle inadvertently. The mail was written after Oracle threatened to sue Google for patent infringement, and defendants are not required to disclose communications with their lawyers if they are seeking legal advice about a case.

There are nine versions of the email, including eight drafts that were saved automatically while Lindholm wrote the note. Since he didn't fill in the "to" field or mark the email as confidential until the final draft, Google mistakenly handed the earlier drafts to Oracle during the discovery process. The final email was sent to Andy Rubin, head of Google's Android division, and to one of Google's lawyers.

But the judge noted that the body of the email was addressed only to Rubin. "Simply labeling a document as privileged and confidential or sending it to a lawyer does not automatically confer privilege," Alsup wrote in his order.

The email is important because a jury might see it as evidence that Google knew it needed a license for Java. That could lead to a judgment of willful infringement, which carries a heavier penalty.

At a hearing when the email first surfaced, the judge made clear how damning the email could be. "You're going to be on the losing end of this document with Andy Rubin on the stand," Alsup said to a Google attorney at the time.

However, it's unclear now when the trial will take place. On Wednesday Alsup postponed the trial, which had been due to begin Oct. 31, because of a scheduling conflict. He did not set a new date.

Nancy Gohring covers mobile phones and cloud computing for The IDG News Service. Follow Nancy on Twitter at @idgnancy. Nancy's e-mail address is Nancy_Gohring@idg.com

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Tags telecommunicationGoogleintellectual propertycopyrightpatentlegalMobile OSesAndroidmobileOracle

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Nancy Gohring

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