eDiscovery Best Practices: Google’s Blunder Keeps Them Under the (Smoking) Gun

eDiscovery Best Practices: Google’s Blunder Keeps Them Under the (Smoking) Gun

February 21, 2012

By Doug Austin
CloudNine Discovery

Reposted by permission from eDiscovery Daily Blog.

As we noted back in November, a mistake made by Google during discovery in its lawsuit with Oracle could cost the company dearly, perhaps billions.  Here’s a brief recap of the case:

Google is currently involved in a lawsuit with Oracle over license fees associated with Java, which forms a critical part of Google’s Android operating system.  Google has leveraged free Android to drive mobile phone users to their ecosystem and extremely profitable searches and advertising.

Despite the use of search technology to cull down a typically large ESI population, a key email, written by Google engineer Tim Lindholm a few weeks before Oracle filed suit against Google, was produced that could prove damaging to their case.  With the threat of litigation from Oracle looming, Lindholm was instructed by Google executives to identify alternatives to Java for use in Android, presumably to strengthen their negotiating position.

“What we’ve actually been asked to do (by Larry and Sergey) is to investigate what technical alternatives exist to Java for Android and Chrome,” the email reads in part, referring to Google co-founders Larry Page and Sergey Brin. “We’ve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.”

Lindholm added the words “Attorney Work Product” and sent the email to Andy Rubin (Google’s top Android executive) and Google in-house attorney Ben Lee; however, Lindholm’s computer saved nine drafts of the email while he was writing it – before he added the words and addressed the email to Lee.  Because Lee’s name and the words “attorney work product” weren’t on the earlier drafts, they weren’t picked up by the eDiscovery software as privileged documents, and they were produced to Oracle.

Judge William Alsup of the U.S. District Court in Oakland, California, indicated to Google’s lawyers that it might suggest willful infringement of Oracle’s patents and despite Google’s motion to “clawback” the email on the grounds it was “unintentionally produced privileged material”, Alsup refused to exclude the document at trial.  Google next filed a petition for a writ of mandamus with the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., seeking to have the appeals court overrule Alsup’s decision permitting Oracle to use the email as evidence in the trial.

On February 6, the Federal Circuit upheld Alsup’s ruling that the email is not privileged, denying Google’s mandamus petition. Observing that the email was written at the request of Google’s co-founders, Larry Page and Sergey Brin (who are not lawyers) and did not refer specifically to legal advice or the senior counsel’s investigation, the appeals court rejected Google’s petition.

As we noted before, organizing the documents into clusters based on similar content, might have grouped the unsent drafts with the identified “attorney work product” final version and helped to ensure that the drafts were classified as intended and not produced.

So, what do you think?  Could this mistake cost Google billions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

~ by CDLB on February 22, 2012.

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