Perseverance doesn't always pay off. Google has tried -- but failed -- seven times to have a potentially damning piece of evidence, the "Lindholm email", hidden from the jury that will get together (possibly as early as April) to decide on whether it infringes on Oracle's asserted copyrights and patents. Yes, seven times. And who knows if they'll come up with an idea for an 8th attempt...
To remind you, Google made five unsuccessful attempts to convince the United States District Court for the Northern District of California to assign privilege to the Lindholm email. In addition, Google brought a motion in limine asking the judge to bar Oracle from presenting the email to the jury because it is misleading (a different argument than asserting privilege). That attempt number six also failed (see item 2 in this blog post on the court's decisions on the various motions in limine).
Today, attempt number seven failed as well. Bloomberg repots that the Court of Appeals for the Federal Circuit (CAFC) denied Google's petition for a writ of mandamus (a kind of interference with an ongoing proceeding) concerning the Lindholm email. When Google's petition became known about three months ago, I called it a "long shot", and today's outcome shows that this was simply a realistic assessment of its prospects. I have meanwhile read the CAFC decision, and it makes it clear that the Lindholm email is anything but privileged attorney-client correspondence, let alone an attorney work product. The CAFC supported Judge Alsup (and, by extension, Magistrate Judge Donna Ryu) of the United States District Court for the Northern District of California all the way.
At the time I thought that Google might, at the most, achieve a delay. But with today's decision, which was handed down without even allowing an oral argument, this potential obstacle is gone and it's all up to Oracle and the presentation of its revised damages claims. The case could go to trial in mid-April, if everything goes according to plan.
Oracle's challenge is to prove an actual infringement of valid intellectual property rights. If Oracle manages to inject the Lindholm email into the early stage of the trial, the jury will basically know that Google itself knows there's some infringement somewhere. Oracle might get a whole lot of mileage out of this piece of evidence.
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