Google and Oracle continue to tussle over a potentially damaging email in the ongoing lawsuit over alleged Java patent violations in the Android mobile OS.
"What we've actually been asked to do by [Google co-founders Larry Page and Sergey Brin] is to investigate what technical alternatives exist to Java for Android and Chrome," Google engineer Tim Lindholm wrote in the August 2010 email to Android chief Andy Rubin. "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."
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Google had tried to get the email redacted on grounds it was subject to attorney-client privilege and that Oracle had revealed it in violation of a protective order, but Judge William Alsup disagreed, and ruled that it should remain public.
"In an extraordinary act of defiance" of Alsup, Google has since failed to reproduce 12 documents related to the email, Oracle said in a letter jointly filed with Oracle Saturday in U.S. District Court for the Northern District of California.
In the letter, Google and Oracle laid out their respective positions on the email. Ten of the documents are drafts of the "inculpatory," or incriminating email, and two are copies of the version sent, Oracle said.
Google only claimed the email was privileged after Alsup suggested it would prove troublesome to its defense at trial, Oracle added.
"Nothing in the Lindholm document indicates any legal advice or attorney work product. Instead, it reflects a sophisticated and experienced engineer's blunt and candid assessment that Google had no good alternatives to Java, and that Google needed a license from Oracle for its use of Java," Oracle said.
But Google tells a different story in the joint letter filed Saturday.
The various drafts of Lindholm's email were generated by an autosave function while he was "drafting a clearly privileged email to Google in-house counsel Ben Lee," Google said. "The only reason those drafts don't list Lee as a recipient is because filling in the list of recipients (the "To" line) was the last thing Mr. Lindholm did."
"Imagine that you are writing a letter to your lawyer and to others who have been tasked by lawyers with investigating facts relating to an anticipated lawsuit," Google added. "Eager to set down your thoughts, you draft the substance of the email first, leaving the 'To' line empty. When you are satisfied with the draft, you loop back to the 'To' field and begin to fill in the names. You add the lawyer's name last."
"Unsurprisingly, those snapshots--all taken in rapid succession within a few seconds or minutes of each other--show that no one was listed in the 'To' field, because you filled that in last," Google said. "Only the final version--the one you actually send--shows all recipients, including the lawyer, and bears a privilege warning."