For the third time this month (following orders issued on August 1 and August 4), the U.S. District Court for the Northern District of California yesterday took a decision against Google's repeated attempts to withhold a damning email -- the so-called Lindholm email -- from the evidence record in the infringement lawsuit brought by Oracle.
Actually, the court issued two related orders on the same day. The first one of these orders granted Oracle's motion to compel Google to reproduce (in terms of "put back") various versions (mostly auto-saved drafts) of the Lindholm email. That decision was taken during a hearing that took place in the San Francisco-based court late Thursday morning by local time:
Today the court held a hearing on the parties' joint discovery letter of August 5, 2011 [...], which concerned Plaintiff's motion to compel Defendant to (re)produce certain documents, which the court will collectively refer to as the Lindholm Emails. During the hearing the court granted Plaintiff's motion, and a separate order detailing the court's reasoning will be forthcoming.
After hearing the court's ruling, Defendant indicated its intent to appeal the decision to Judge Alsup. Defendant also appeared to believe that it need not produce the Lindholm Emails until Judge Alsup rules on the appeal. Defendant is mistaken. The filing of objections does not stay the operation of the court's order. [citations of other cases]
Thus, the court hereby ORDERS that Defendant produce the Lindholm Emails to Plaintiff immediately; and it further ORDERS that the parties immediately arrange for the deposition of Mr. Lindholm.
I have also uploaded that order to Scribd. [Update] When I originally wrote this post, the detailed version of the order with the legal reasoning wasn't available yet. Later I uploaded that one to Scribd as well. Magistrate Judge Ryu discusses several criteria for her decision, any one of which would be sufficient on its own to admit the Lindholm email as evidence. The detailed reasoning also highlights that Google's own lead counsel at a July 21 hearing made representations (later retracted) that support the court's position. [/Update]
The order was issued by Magistrate Judge Donna Ryu, who handles discovery disputes in this litigation. The judge presiding over this litigation is Judge William Alsup, and the order stresses that Google's declared intent to appeal this discovery decision to Judge Alsup (which I don't think is likely to change anything anyway) doesn't allow Google to stall the process. Google now has to put the Lindholm email (in its various versions) back into the evidence record, and the deposition of Mr. Lindholm will occur shortly.
The fact that Google's lawyers want to appeal this discovery matter to Judge Alsup is not surprising. They have been trying rather desperately now for about a month to have the Lindholm email -- and references to that email in a hearing transcript -- removed from the evidence record. They probably know that the odds are long against Judge Alsup overruling Magistrate Judge Ryu on this one. Judge Alsup himself has previously shown absolutely no understanding for Google's attempts to suppress this particular piece of evidence. But Google's lawyers may already be thinking of a possible appeal to the Court of Appeals for the Federal Circuit (CAFC) after losing the trial. In that case they would have to raise questions of law in order to be able to ask for a new trial. They might make the admissibility of the Lindholm email as evidence a cornerstone of a (post-trial) appeal to the CAFC, and if that's what they want to do, they have to exhaust all of their procedural options in the district court, no matter how likely or, in this case, unlikely that is going to lead to anything other than further annoying Judge Alsup.
I said that the court issued two near-simultaneous orders. I still owe you the other one:
ORDER DENYING DEFENDANT'S MOTION TO REDACT AND SEAL PORTIONS OF HEARING TRANSCRIPT
In accordance with this court's granting of Plaintiff's motion to compel [...], the court DENIES Defendant's motion to redact and seal portions of the hearing transcript.
The above order is a logical consequence of the previous one: if the Lindholm email forms part of the evidence record, Google can't demand that references to it be redacted out of a July 21 hearing transcript.
Google will keep fighting, but realistically, the jury will get to see the Lindholm email. As a result, there's a fairly high risk for Google that it could be found to have infringed Oracle's Java-related intellectual property rights willfully, which in turn would result in triple damages and, even more importantly, an injunction -- the maximum leverage Oracle could possibly get in order to dictate the terms of a license deal.
Of course, one can never rule out that the jury might be less impressed by the Lindholm email than Judge Alsup predicted it would be. But the effort Google's lawyers make to get rid of that piece of evidence -- and the bridges they appear to be willing to burn with the two judges assigned to this case -- show that Google is, indeed, very afraid.
In other developments related to this case, the United States Patent & Trademark Office has now issued first Office actions (initial opinions) on the reexamination of all seven patents-in-suit. The WHDA Reexamination Alert blog has a very informative article on the mixed result Google obtained with respect to Oracle's seventh patent-in-suit.
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