Google still trying to remove damning e-mail from court case

Documents filed on Monday in its battle with Oracle offer a glimpse into the volume of data involved in such suits

Google continues to argue that a damning e-mail in its battle with Oracle shouldn't be shown to jurors because it was confidential and intended to be privileged communication with an attorney.

The e-mail in question suggests that Google knew it needed a Java license for its Android platform. Oracle is suing Google, claiming that Android violates Java patents property.

The judge overseeing the case has already said that Google can't remove the e-mail from the record. But Google continues to argue it should be allowed to, and in early August the judge asked both Oracle and Google to file all factual information they have regarding the e-mail by today.

The documents filed by Google offer a glimpse into the amount of data produced by this kind of lawsuit.

Google paralegals have turned over 97 million documents related to this case to a third-party vendor that processes the documents, said Kristin Zmrhal, a project manager of discovery support at Google, in a declaration filed Monday.

The vendor filters the documents using search terms agreed upon by Google and Oracle and then tags those documents. Attorneys working for another vendor then review those documents, she said. They look for words like "privileged" and "confidential" as well as names of attorneys that might be in the "to" line of an e-mail. Such documents would be considered confidential and would not become part of the case.

Those attorneys have reviewed more than 11 million documents and have produced 3.7 million documents for this case, she said.

Zmrhal also explains, as Google has in previous filings with the court, that Google's e-mail service autosaves a draft of e-mails every 10 seconds to 60 seconds, saving those drafts. Google has argued that the e-mail in question was a draft and that the author hadn't yet written the words "Google confidential" at the top of the document or typed in the lawyers' names in the "to" field.

A declaration by the author of the e-mail, Google engineer Tim Lindholm, was also filed on Monday and he describes a similar scenario. "The documents constitute a communication to Google in-house attorney Ben Lee," he said.

Google has good reason to want to keep the e-mail from a jury.

"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," Lindholm wrote in the e-mail. "We've been over a hundred of these and think they all suck. We conclude that we need to negotiate a license for Java." He was referring to Google co-founders Larry Page and Sergey Brin and wrote the e-mail after a meeting with Google attorneys and engineers to discuss Oracle's claims of patent infringement.

When the e-mail surfaced during a hearing last month, Judge William Alsup, who is overseeing the case, told Google: "You're going to be on the losing end of this document with Andy Rubin on the stand." Rubin runs Android for Google.

By 4:30 p.m. Pacific Time, Oracle hadn't filed any documents related to the e-mail.

The lawsuit dates back to last year when Oracle accused Google of infringing on Java-related patents in Android. A jury trial in the case, filed in the U.S. District Court for the Northern District of California, is set for Oct. 31.

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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