Google wants the judge overseeing the lawsuit Oracle filed over the Android mobile OS to redact a potentially damaging e-mail written by a Google employee, saying it was supposed to remain confidential and that Oracle wrongly revealed it.
Oracle sued Google in August 2010, alleging that its Android mobile OS violated a number of patents Oracle holds on the Java programming language, which it gained through the purchase of Sun Microsystems.
"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," Google engineer Tim Lindholm wrote in the Aug. 2010 e-mail, referring to Google founders Larry Page and Sergey Brin. "We've been over a hundred of these and think they all suck. We conclude that we need to negotiate a license for Java."
The e-mail's contents were revealed last week during a hearing on whether the findings of Oracle's damages expert should be set aside.
"You are going to be on the losing end of this document" if its contents are revealed to a jury, Judge William Alsup told Google's attorney during the hearing.
"That's a pretty good document for you," Alsup said earlier to Oracle's lawyer. "That ought to be big for you at trial."
Google, however, doesn't want such a potential smoking gun to make it that far.
"This situation would not have arisen but for Oracle's violation of the protective order in this matter," Google attorneys wrote in a filing late Thursday in U.S. District Court for the Northern District of California. "The inadvertently-produced document was marked 'HIGHLY CONFIDENTIAL -- ATTORNEY'S EYES ONLY and ... the protective order specifically states that '[p]arties shall give the other parties notice if they reasonably expect a deposition, hearing or other proceeding to include Protected Material. Oracle provided no such notice prior to the hearing."
Instead, Oracle showed up at the hearing "bearing a binder of excerpts from various documents that were not part of its filed opposition and not part of the record," it adds.
Oracle also implied that Lindholm's e-mail had actually been sent, but in fact it was an incomplete draft, Google added.
Oracle filed a response to Google's letter later on Thursday, attacking its arguments on several grounds.
For one, last week's hearing wasn't the first time the Lindholm e-mail was discussed, as it also came up during a discovery hearing with a different judge earlier that day, Oracle said.
The judge "asked Oracle's counsel to identify documents showing the need for Mr. Lindholm's deposition," according to Oracle's filing. "In response, Oracle's counsel referred to the Lindholm document. At the discovery hearing and [the hearing related to the damages expert], Google counsel demonstrated that they were already familiar with the document, discussed its substance with the Court, and made no claim of privilege."
It was only after Alsup told Google "in no uncertain terms that the Lindholm document could be a serious blow to its case" that it moved to shield its contents, Oracle added. "That was too late."
It's also untrue that Oracle breached the protective order, the filing adds.
At the start of last week's damages hearing, "Oracle gave Google a copy of the materials it intended to use, disclosed that they included documents that Google had designated as confidential, and stated that Oracle did not intend to discuss their contents," the filing states. "In response, the Court flatly rejected the contention that the documents were confidential at all, stating, 'You say whatever you want. If Google has a memo in their file saying, we are about to willfully infringe, there is no way I'm going to keep that secret from the public or the investing public.'"
"Not a single Google attorney objected, not one raised any argument in protest," it adds. "To the contrary, Google's counsel then disclosed -- with no warning at all -- the testimony of [former Sun CEO] Jonathan Schwartz, which Google had agreed to treat as Highly Confidential."
During a deposition last week, Schwartz testified that Sun was positive about Android because it would expand the use of Java, a Google attorney said at the damages hearing. Android also did not fragment the Java platform, and it was based on technology either created by Google or licensed from the Apache Software Foundation, Schwartz reportedly said.
Oracle's expert had estimated Google could owe it between US$1.4 billion and $6.1 billion, according to Google. Last week, Alsup ordered Oracle to lower its claim, saying the expert "overreached."
The case is scheduled to go to trial Oct. 31, but Alsup has indicated he'd like the two sides to reach a settlement before then.
(James Niccolai of IDG News Service contributed to this report.)
Chris Kanaracus covers enterprise software and general technology breaking news for The IDG News Service. Chris's e-mail address is [email protected]