Google and Oracle continue to tussle over a potentially damaging e-mail 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 e-mail 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."
Google had tried to get the e-mail 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 e-mail, 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 e-mail. Ten of the documents are drafts of the "inculpatory," or incriminating e-mail, and two are copies of the version sent, Oracle said.
Google only claimed the e-mail 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 e-mail were generated by an autosave function while he was "drafting a clearly privileged e-mail 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."
Oracle is "using autosaves of a clearly privileged document to create a false impression that these are different documents and that none of them was, or was meant to be, communicated to a lawyer," Google said.
Moreover, the e-mail offers no proof that Google willfully infringed on the Java patents, according to Google. Rather, it "concerns an investigation made in anticipation of Oracle's lawsuit, shortly after Google learned of the patents that Oracle is asserting."
Google is asking Alsup for a chance to prove that all versions of the e-mail are privileged, by showing him "what the autosaves are and how they came into being" and the final version of the e-mail for a basis of comparison.
Lindholm would also submit a declaration explaining that he "prepared the email at the behest of and in coordination with Google's lawyers, and that the email constituted a privileged communication to them in anticipation of this lawsuit," Google said.
If Alsup's track record in the case is any guide, he may rule on Google's request quickly.
Oracle sued Google in August 2010, alleging that Android violated a number of patents held by Oracle on the Java programming language, which it acquired through the purchase of Sun Microsystems. Google has denied any wrongdoing.
A trial has been scheduled for Oct. 31, but Alsup has indicated he'd like the companies to settle the matter before then.
Chris Kanaracus covers enterprise software and general technology breaking news for The IDG News Service. Chris's e-mail address is Chris_Kanaracus@idg.com