Attorney-client privilege can only go so far to protect you against the airing of potentially damaging communications in court. That's what Google learned this month when a judge allowed Oracle to use a Google engineer's unsent email message as evidence in their patent infringement lawsuit, which began with Oracle suing Google in August 2010 for allegedly infringing its patents on the Java programming language in the Android mobile operating system.
"You are going to be on the losing end of this document" if the e-mail ends up being revealed to a jury, Judge William Alsup told Google's attorney during a hearing in July. That same judge has now ruled that Oracle may submit the email as evidence.
What's so bad about the email? Let's take a look at it:
"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," wrote Google engineer Tim Lindholm in the e-mail, dated August 2010. (Larry and Sergey are Google founders Larry Page and Sergey Brin.) "We've been over a hundred of these," he continued, "and think they all suck. We conclude that we need to negotiate a license for Java."
Google claims the email message was a draft only, and never sent. Although the message was marked "HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY," no recipient was specified in the "To" line (attorney or otherwise), and it was apparently never sent. And there's the rub: Without the message having been sent to an attorney, the attorney-client privilege does not exist.
"Google states that the addressee field of the draft message is blank, indicating that the draft never was sent to anyone," wrote Judge Alsup. "Thus, the document is not a communication of any type, much less a communication protected by the attorney-client privilege."
None of the news stories make it clear exactly how the unsent draft ended up in Oracle's possession.
The lesson to be learned: When it comes to confidential email drafts, either send them or delete them - just don't let them hang around or wander into enemy territory!
As patent expert Gene Quinn pointed out recently, Google seems to get sued over Android for patent infringement with inordinate frequency. At first I thought that this must merely be because Android has been such a successful and popular product. But, as Quinn implied, maybe it's really due to the questionable quality of Android's underlying IP. Or perhaps it's a bit of both.