I came across this recent piece at Thomson Reuters–Oracle Judge Okays Damning E-mail Despite Google Privilege Claim–and I got to marvel, from a refreshingly safe distance, all the ways that things can go wrong in a courtroom.
In its patent infringement case against Google, the Oracle team prepared an exhibit binder for a July 21st evidentiary hearing, including an apparently unrelated email draft by a Google engineer.
[Golly, how did that happen?] The judge read the draft aloud, in court, on the record, “We’ve been over a hundred [alternatives to Oracle’s Java software] and I think they all suck…we conclude that we need to negotiate a license for Java.” [Ouch.] Then the judge said to the Google lawyers, “You are going to be on the losing end of this document.” [Uh-oh.] But after the hearing Google rallied, and moved to have the draft and its recitation stricken from the record because it is protected by attorney-client privilege and should not have been turned over at all. [Ha!] But the Oracle team pointed out that the draft came to them through discovery nine different times. [Uh-oh, again.] And the judge noted that privilege only applies to communications [fudge], that the draft was never sent and was, therefore, not a communication [double fudge], and that simply labeling a document “work privilege” does not magically shield the exhibit from production [triple fudge].
This case has everything: a motions-practice ambush, a judge with an agenda who’s not shy about doing a bit of bench-litigation, a furious scramble to un-ring a bell, a glorious exhortation to respect a legal fiction, and a terse response that invites the loser to get real. [Oh please, please, please go to trial!]