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In what some of have called the case of the "most-litigated email message in American jurisprudence," the score is now Google Inc.: 0, Oracle, Corp.: 7.
Google lost another attempt to exclude a potentially-damning email written by one of its engineers as it fights a Java patent infringement lawsuit filed by Oracle.
This time, it was the Federal Circuit Court of Appeals that held the email was not protected by the attorney-client privilege -- even though one of its recipients was a Google in-house lawyer -- since it clearly did not discuss legal strategy prepared in advance of litigation.
The contentious email, written by engineer Tim Lindholm in August 2010, reportedly included his thoughts on technical alternatives to Java in which he stated: "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."
The Federal Circuit's decision upholds a lower court's order that the Lindholm e-mail can be presented as evidence in the Oracle trial, which could start as early as April. Oracle alleges that Google's Android operating system infringed on patents and copyrights held by Oracle for its Java technology, and is seeking at least $1 billion in damages, according to Bloomberg.
Addressing the contents of the email, the Federal Circuit found that "the email's discussion is directed as a negotiation strategy as opposed to a license negotiation as a component or legal strategy. The email does not evidence any sort of infringement or invalidity strategy." Further, it reiterated that parties seeking to use the attorney-client privilege must sufficiently establish that the communication relates to professional legal services.
Despite Google's continued assertions that the email does not constitute proof that it is guilty of patent infringement, it doesn't look like the most-litigated email message ever will be out of the courts any time soon in any scenario. Whether it's going to trial or it's going to be discussed in the U.S. Supreme Court, the Lindholm email will be making news for quite a while.