Google and Oracle are involved in a lawsuit over license fees associated with Java. Oracle acquired Java as part of the deal when they purchased Sun. Most companies license Java, but Google did not, even though it is part of Google’s popular Android operating system. Google gives Android away for free as part of their strategy to drive mobile phone users to their other applications and their extremely profitable search and advertising platforms.
Google suffered a setback in its patent dispute when a federal judge denied their request to keep an internal Google e-mail out of the case record. The e-mail, written by a Google engineer, could suggest that Google knew it should have licensed Java technology as part of the Android system. Given the success of Android, a loss to Oracle is expected to result in billions of dollars in damages.
While many have already pointed out the irony of Google’s error regarding search technology, there are some specific lessons/actions that can be taken from this example to help people avoid making similar mistakes. This article will discuss the problem as it is identified in this case and then conclude with some general tips that should be considered by legal counsel whose job is to assist their clients. This incident shines another light on electronic discovery, which continues to create challenges for lawyers as the volume of electronic data continues to increase. Education and understanding are the tools to lead counsel down the correct path.
Details of the Case
The details of this case began with the discovery phase, particularly the E-Discovery phase. Because the potential document population was extremely large, the parties decided to use software tools to define date ranges, search for keywords and find the material they needed to produce. All communications discussing legal advice with corporate attorneys are protected by the attorney-client privilege; and are not required to be produced in a discovery request. Google argued that its potentially incriminating e-mail fell into this category.
Tim Lindholm, the engineer from Google, wrote the memo in question last August, only a few weeks before Oracle filed suit against Google. At the time, Oracle had threatened to sue Google for billions of dollars. It appears that Lindholm was instructed by Google executives to explore different alternatives to Java for use in Android, in an attempt to strengthen their negotiating position.
In part the memo stated, “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,"... "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."
There were nine drafts of the e-mail memo on Lindholm's computer. In the court filing Google explained that only the last draft contained the words "Attorney Work Product," and only on the version that was sent did he fill out the "to" field, with the names of Rubin and Google in-house attorney Ben Lee. Because this information was not on the earlier drafts, they weren't picked up by the e-discovery software as privileged documents, and they were sent off to Oracle's lawyers.
Normally, the last step in the document review process is that the documents and emails being released to the other side are manually reviewed and quality controlled. This is a standard procedure used by most E-Discovery software vendors. Google argued that their "electronic scanning tools" (which perform a search function) failed to catch the documents before they were produced, because the "to" field was blank and Lindholm hadn't yet added the words "attorney work product."
Was this a legal or technology blunder, or both?
This email should probably never have been produced in the first place. Later that evening when the error was discovered, Google’s lawyers filed a motion to "claw it back" on the grounds it was "unintentionally produced privileged material." Oracle objected, and a three month argument began that ended last week with Judge Alsup’s refusal to exclude the document at trial.
If the drafts hadn't been skipped over during the search and review process, it's likely that Lindholm's e-mails would never have been produced. The final version and all the drafts would have likely appeared on the "privilege log" that lists the documents they're withholding, with a brief description of why they're privileged. While material on a privilege log can be challenged, most of the time, material is not produced once it is on the log.
However, once Oracle had seen the document, it fought to keep it in the open. During the discovery process, a magistrate judge determined it was not privileged because the body of the text was addressed to Rubin, who is not an attorney, and because Lindholm wrote that he was acting at the behest of Page and Brin, the founders of Google. The magistrate judge ruled that it was a business discussion about how to negotiate with Oracle, and that simply addressing it to a lawyer didn't make it privileged.
These types of discovery errors are not uncommon, sometimes caused by software errors, but often they result from the improper implementation of software and procedures by humans. If the tool is not handled by an experienced operator, who understands the technology and law, then these types of errors will occur. Perhaps part of the problem is that Google, and other companies like them, feel that every problem is best addressed as a technology issue and rely to heavily on the “results” that are produced. In the legal profession, there is a heavy reliance on humans for a reason.
Takeaway
This case is far from over and it may be that the issues at hand may be challenged again in the future. However, I believe that there are three major lessons that can be learned and solutions put in place to avoid these types of problems in the future.
1) Corporate policy should be written that demands that all emails and documents, from the first draft to the last, be labeled with the appropriate heading of “Privileged” or “Attorney Work Product” if they apply or the employee thinks they should apply. It is better to err slightly on the side of over inclusion in these categories so that counsel can quickly review the documents. Then, when they are auto flagged by the correct search technology, they can be reviewed by counsel to determine whether they should be excluded. An education program taught by legal counsel should be a requirement for all employees so they understand what these determinations mean and why they may be important in the future.
2) Even the so-called “Search Experts”, in this case Google, may not be aware about how to perform a proper search surrounding electronic discovery and document production. You need to work with experts in the legal profession who are experienced in creating complicated searches to help ensure that all potential documents are discovered. Additionally, you need expertise with the software that you are using so that an expert can create the searches to fit the search tool being used. Understanding how the software works is key to crafting the search using the proper syntax to identify documents for production.
3) Technology and advanced search algorithms can only point you in the right direction and help reduce your workload. You still need trained legal review teams to make final judgments about document content. The human part of search is as relevant today as it ever was. Technology does not replace the need for humans to review the results and make legal judgments on material that can not be interpreted or isolated by machines. Make sure that all relevant lawyers receive proper training on any E-Discovery software that is being used on a case. Identifying a document as “privileged” is not enough. Attorneys need to understand how to isolate those documents from the population before they are released to the opposition. Be proactive and not reactive.
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