Google mandamus on Lindholm email: key test of client privilege

January 12, 2012

Remember the draft email from Google engineer Tim Lindholm that’s become the most hotly-litigated issue in Oracle’s Java software infringement case? In the now-notorious message, Lindholm informed the Google VP in charge of the Android operating system that he’d considered various technical alternatives to Java and concluded that “they all suck.” (He recommended taking out a license on Java software, which Google nevertheless opted not to do.) Google’s lawyers at Keker & Van Nest have fought like hell to keep the damning Lindholm email out of evidence, but U.S. District Judge William Alsup of San Francisco federal court has nevertheless ruled three times that the draft — whose recipients included a Google in-house lawyer — is not privileged and should stay in the public record. In November, Google took the drastic step of filing a petition for a writ of mandamus at the U.S. Court of Appeals for the Federal Circuit to reverse Alsup’s rulings.

You won’t find either side’s briefs in the scant public docket at the appeals court. But I’ve gotten hold of the mandamus petition and Oracle’s response to it. The documents suggest that the already infamous Lindholm email could end up generating important Federal Circuit precedent on the bounds of attorney-client privilege.

Google’s central argument is that Alsup and San Francisco federal magistrate Donna Ryu didn’t pay enough heed to the U.S. Supreme Court’s 1981 opinion in Upjohn v. United States, which held that privilege applies to communications about legal strategy between a corporation’s in-house lawyers and its employees. The Lindholm draft email was generated in anticipation of Oracle’s infringement suit, Google asserted, and its recipients included a Google lawyer. Google’s mandamus petition said that only by “adopting and expanding upon” a D.C. Circuit opinion called In re Sealed Case, which requires a “clear showing” that communications involve legal questions, could Alsup conclude that the email isn’t protected.

“Going far beyond the D.C. Circuit’s holding, the district court extended this ‘clear showing’ standard to all in-house lawyers because they are presumed to do more non-legal work than outside counsel,” wrote Google’s lawyers. “The district judge’s written opinion justified this approach by citing his long-held personal skepticism about privilege claims involving in-house counsel.” (Google’s brief is by Keker & Van Nest, King & Spalding, and Greenberg Traurig.)

Oracle’s lawyers at Boies, Schiller & Flexner and Morrison & Foerster replied that the Lindholm email wasn’t a legal communication at all, but part of an exchange amongst engineers and executives about business decisions. “Nowhere does the email text mention lawyers or legal advice, nor does it seek input from lawyers or legal advice,” Oracle’s brief said. “Rather, the facts established by the email indicate that it is ‘a business discussion,’ ” and thus not protected under Upjohn and Sealed Case. Oracle also pointed out that Google’s lawyers didn’t even claim the draft was privileged when Oracle first introduced it at hearings before Ryu; and argued that it’s too late to remove the Lindholm email from the record anyway, since it’s become so widely known.

The briefs are now before the Federal Circuit, which also received a letter from Google late last week. The letter advised the appellate court that Alsup’s latest ruling, denying an in limine motion by Google, leaves the damning email in the trial court record. “Accordingly, that motion cannot provide the relief sought in the petition before this court,” said the letter, signed by Google counsel Robert Van Nest. Van Nest advised the appellate court that the trial won’t start until March 19, which gives the Federal Circuit a de facto deadline to decide the mandamus case.

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