The E-Mail That Google Really Doesn’t Want A Jury To See

Lawyers defending Google (NSDQ: GOOG) against a patent and copyright lawsuit brought by Oracle are trying desperately to keep a particular engineer’s e-mail out of the public eye-but it looks like they’re unlikely to succeed.

The e-mail, from Google engineer Tim Lindholm to the head of Google’s Android division, Andy Rubin, recommends that Google negotiate for a license to Java rather than pick an alternative system.

The key portion of the email was read aloud from the bench by U.S. District Judge William Alsup during a July 21 hearing. The second paragraph of the email reads: “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. 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.”

Alsup clearly saw that email as something of a smoking gun-a Google engineer saying that the company should negotiate a license, or in other words, strike a deal with Oracle rather than fight it out in court. After reading it, Alsup said to Google lawyer Robert Van Nest: “You’re going to be on the losing end of this document-with Andy Rubin on the stand.”

Now Google is taking action to have that email, and Alsup’s reference to it in his order, thrown out of the public record. In a letter dated July 28, Van Nest wrote to Alsup, explaining that Google had handed over the email (which was actually a draft) inadvertently, and then later realized the email was subject to attorney-client privilege and never should have been disclosed. Oracle’s disclosure of the document was “improper,” argued Van Nest, and the email never should have been made public.

That didn’t sway Alsup. He responded with an order on Aug. 1, disagreeing that the document should be kept secret. “Simply labeling a document as attorney work product or sending it to a lawyer… does not automatically trigger privilege,” wrote Alsup.

Google is taking one more shot at keeping the email under wraps. In a letter sent today, Van Nest asks for permission to show the judge additional evidence in a private hearing that would show how the email really is privileged.

Does it really matter? After all, multiple reporters were at the July 21 hearing (including myself) and reported on the contents of the email once Alsup read them from the bench. But battles over evidence still matter-if the document is found to be privileged then Google won’t have to show it to a jury (assuming the case makes it that far.)

Is the e-mail really the smoking gun Alsup implied it is? Not necessarily. As Van Nest explains in his Aug. 3 letter, Lindholm’s email was the result of an analysis he had done in response to Oracle’s legal threats against Google. After being told by Oracle that its use of Java is infringing patents, it’s only logical that a company would at least consider ditching Java altogether, to avoid litigation. Lindholm concluded that wasn’t a route that was going to work. Properly understood, Lindholm’s email is hardly an admission of infringement-it’s more like a suggestion that negotiation might be the best route.

But that negotiation, obviously, didn’t work out-Oracle’s outsize damage demands probably suggest its negotiating stance was pretty ‘out there’-and now the two companies are in court.

Overall, Google is feeling the patent heat on a number of fronts. Earlier today, the company’s chief legal officer published a blog post denouncing the “hostile, organized campaign against Android,” in which competitors like Apple (NSDQ: AAPL) and Microsoft (NSDQ: MSFT) are using patents to go after handset-makers who use Android. Oracle is the only major company to attack Android directly in court, however.