Wednesday, September 14, 2011

Google gets one last chance to strike the 'damning' Lindholm email

A potentially "damning" piece of evidence for willful infringement -- also known as the Lindholm email -- continues to be disputed in Oracle's patent and copyright lawsuit against Google. If it's admitted as evidence, it greatly increases the likelihood of Google being held by a jury to have infringed willfully on Oracle's intellectual property, which in turn would likely result in an injunction and triple damages (provided that an infringement is proven). Google claims attorney-client privilege for the email, saying that it was correspondence involving some of its internal lawyers that should remain confidential.

The seemingly-neverending Lindholm story is now set to continue with yet another briefing process and hearing scheduled on a related Google motion. What makes today's order (allowing Google to file a motion) particularly interesting is that it comes less than a week before the mediation effort, which will begin next Monday and bring Oracle CEO Larry Ellison and Google CEO Larry Page together in a courtroom. If the court had denied Google's last-ditch effort to get that document removed, it would have strengthened Oracle considerably in those negotiations. Today's decision doesn't mean that Google has much of a chance to prevail -- but when deciding whether to accept a settlement offer from Google, Oracle won't know for sure that the document will be shown to the jury if this case isn't settled and goes to trial.

In August, the United States District Court for the Northern District of California took three decisions against different attempts by Google to have that email removed from the evidence record. Most recently, Magistrate Judge Donna Ryu (who's in charge of discovery disputes) ordered Google on August 25 to return that document (which Google had temporarily removed from its evidence record) "immediately". At the time, Google already declared its intent to appeal that decision to Judge William Alsup, the federal judge presiding over this litigation. I surmised that Google wanted to preserve the record, meaning that it wanted to exhaust all legal options in the federal court with a view to a possible appeal, in which the admissibility of the Lindholm email as evidence might raise new legal questions for the Federal Circuit. It looked like a long shot for Google to make the California-based court change mind.

Last Thursday (September 8), Google filed a "motion for relief from nondispositive pretrial order of magistrate judge" to ask Judge Alsup to overrule Magistrate Judge Ryu with respect to the Lindholm email. The next day, Judge Alsup ruled that the motion was "unauthorized" because "Google neither sought nor received permission to file such a motion", and told Google's lawyers that they should go through a "précis procedure" in order to determine whether Google would be allowed to file such a motion. Judge Alsup also said that with a view to the timeliness of the motion, he would, however, use "[t]he date of Google's unauthorized filing". In other words, they weren't going to miss the deadline just because of the procedure they chose.

On Monday (September 12), Google requested permission to file a motion concerning the Lindholm email. The unauthorized motion was justified in the following way:

"Google apologizes for any inconvenience to the Court caused by its failure to file this précis before filing the motion itself. Google was, however, required to file timely objections in order to preserve its rights on appeal, regardless of whether the Court granted permission for it to do so. [...] Google sincerely regrets any inconvenience to the Court [...]"

Today (Wednesday, September 14), Oracle's lawyers reminded the court of the various occasions on which it had already decided that the Lindholm email is admissible as evidence and advocated the denial of Google's request for permission to file the relevant motion.

Judge Alsup said that he had "considered the submissions from both sides" and granted Google's request for permission to file a motion. He didn't provide any reasoning. I would still be very surprised if that email was thrown out, but the judge may feel that Google should get one last chance to raise its concerns. Since this judge very much wants the parties to settle, it's quite possible that the implications of this for next week's settlement talks were a key factor in his decision to grant the requested permission.

Google must now file its motion by September 19 (next Monday), which is easy since it had already filed it without authorization and now just needs to refile it. Oracle then gets a week to respond (by September 26), and Google will reply to Oracle's brief on or before September 29. The motion will be discussed at a hearing scheduled for 8 AM on October 13, 2011. (That happens to be the same day on which Apple's motion for a preliminary injunction against Samsung will be heard by the same district court.)

On another note (but still related to this lawsuit), Oracle today refiled an exhibit to a previous filing that showed an email from Android boss Andy Rubin to Google co-founder Sergey Brin. The purpose of the refiling was just to delete blacken out Rubin's cell phone number. I was actually quite surprised when I saw the original filing last week with that number. I published that email in a blog post and proactively blackened out that number. I want to report on the issues and I certainly don't handle Rubin with kid gloves as far as Android's IP issues are concerned, but I didn't want to be responsible for all sorts of people calling him on his mobile phone.

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