Judging by the tone of its latest filing, Oracle is tired of Google's desperate and endless attempts to withhold from the jury a key document -- an email described as "damning" (for Google) in media reports (1, 2) and recently quoted here on this blog. Earlier today I provided an update that was like three blog posts in one, the first part of which also related to the wrangling over the so-called Lindholm email. Now I saw Oracle's latest filing and also took a much closer look at another one filed by Oracle on Monday.
In order to hear the parties one last time before the issue is put to rest one way or another, Judge Alsup -- who previously denied Google's initiatives aiming to remove the Lindholm email -- told the parties to file factual declarations (as opposed to legal arguments) by this week's Monday (August 15, 2011). The idea was to avoid too much of a back-and-forth argument, but what happened is that Google saw Oracle's statement of facts and claimed that it was legal, not merely factual. On that basis, Google objected to the declaration. Should the court not agree with its objections, Google wanted the right to respond to what it considers a legal argument. In other words, they fight for every little opportunity to make legal statements, and I guess this annoys the judge a lot.
Here's now the key passage from Oracle's filing today that sums up the key facts that Oracle believes it was allowed to state in such a declaration:
Finally, contrary to Google’s contentions, there is nothing improper about stating, in a declaration, the fact that the Lindholm document has been discussed in open court [...], the fact that Google has never provided a privilege log for clawed back documents [...], the fact that Google added a confidentiality legend to the purportedly privileged drafts before it produced them [...], the fact that Google has asserted various, inconsistent bases for claiming that the clawed back documents are privileged [...], the fact that the Lindholm document itself states that Mr. Lindholm was acting at the direction of Larry Page and Sergey Brin, not Google counsel [...], or the fact that Google itself has successfully argued, in this case, that facts transmitted through counsel are not protected by privilege [...].
Google’s real complaint is that these facts, once connected to the legal principles that will apply, obviously and unavoidably lead to certain conclusions. Damning facts are still facts.
Look at that last sentence: "Damning facts are still facts." Damn! That's forceful and, at the same time, understandable.
I have uploaded that document to Scribd.
The fact that the email itself talks about a request from Larry Page and Sergey Brin as opposed to the legal department is very important here since this reinforces Oracle's argument that it's a business email, not attorney-client correspondence. But some of the other facts are also quite compelling all by themselves. For example, the fact that the email was discussed in open court -- the judge wanted everything relevant to the willful infringement question to be put on the table -- means that in order to eliminate this evidence, Google needs to (and obviously tries to) get the heraing transcript and other documents redacted, too. If any one of those removals or redactions is denied, the information is out there for the jury to see.
Frankly, the dispute started by Google over Oracle's declaration of facts is over the top. I understand that Google's lawyers want to make every humanly possible effort to win, but what they're doing here is to ask the court to strike parts of an Oracle declaration in hopes of that raising Google's prospects of getting the damning Lindholm email removed. It's not against the law, but it's really extreme.
In closing, let me mention a tidbit that could make many of you -- my esteemed readers -- smile a little bit. Oracle's declaration at issue here has a section entitled "Publication of Lindholm Document in Press and by Google". That's on page 12 of the PDF file (which I have also uploaded to Scribd). Paragraph 46 lists four examples of articles that quoted the Lindholm email. The first one of those examples is this recent post of mine. Additionally, Oracle provided examples of how Google's own search engine reveals the text of the Lindholm email if one uses a certain keyword combination. You find that sample of search results on page 67 of the PDF document. The third one relates to that same post here.
And now I'll write up the next post, which is about a very important development in connection with a different dispute...
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