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Google denied in latest attempt to bar controversial e-mail

Oracle has argued the e-mail from a Google engineer suggests willful infringement of Java

Google has received another setback in its vigorous efforts to keep a potentially damaging e-mail out of the lawsuit Oracle filed over alleged Java patent violations in the Android mobile OS.

Google must immediately turn over the draft e-mail by Google engineer Tim Lindholm, as well as related versions, according to a ruling by U.S. Magistrate Judge Donna Ryu filed late Thursday in U.S. District Court for the Northern District of California.

"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," 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."

Oracle sued Google last year, alleging Android was in violation of a number of Java patents and copyrights. Google has denied any wrongdoing.

But Oracle's attorneys have seized upon the Lindholm e-mail, apparently seeing it as a smoking gun that could help convince a jury that Google willingly infringed on Java.

Google has denied the e-mail suggests anything of the kind, saying in a previous filing that it "concerns an investigation made in anticipation of Oracle's lawsuit, shortly after Google learned of the patents that Oracle is asserting."

Still, for weeks Google has been trying to get the e-mail redacted, arguing it was subject to attorney-client privilege and that in revealing it, Oracle had violated a protective order.

The rationale for Ryu's decision was not immediately clear Friday, but those reasons will come in another filing soon, she wrote.

Ryu is overseeing discovery matters in the case, with Judge William Alsup serving as the main presiding judge.

Google indicated during a hearing on the matter Thursday that it planned to appeal Ryu's decision to Alsup, according to her ruling.

"Defendant also appeared to believe that it need not produce the Lindholm e-mails until Judge Alsup rules on the appeal," Ryu wrote. "Defendant is mistaken."

Google must produce the e-mails at once, as well as immediately make arrangements for Lindholm to give a deposition in the case, Ryu ruled.

"The odds are long against Judge Alsup overruling Magistrate Judge Ryu on this one," software patent expert Florian Mueller, who has been following the case closely, wrote in a blog post Friday. "Judge Alsup himself has previously shown absolutely no understanding for Google's attempts to suppress this particular piece of evidence."

"But Google's lawyers may already be thinking of a possible appeal to the Court of Appeals for the Federal Circuit (CAFC) after losing the trial," Mueller added. "They might make the admissibility of the Lindholm e-mail as evidence a cornerstone of a (post-trial) appeal to the CAFC, and if that's what they want to do, they have to exhaust all of their procedural options in the district court, no matter how likely or, in this case, unlikely that is going to lead to anything other than further annoying Judge Alsup."

Google did not immediately respond to a request for comment Friday.

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


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