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How Google was tripped up by a bad search

James Niccolai | Oct. 31, 2011
In the end it was a search that let Google down.

"You're going to be on the losing end of this document with Andy Rubin on the stand," Alsup said, referring to Google's top Android executive.

In fact, Google's lawyers never should have produced the email in the first place. Later that evening they filed a motion to "claw it back" on the grounds it was "unintentionally produced privileged material." Oracle objected, and so began a three-month battle that culminated last week with Alsup's refusal to exclude the document at trial.

Lindholm's computer saved nine drafts of the email while he was writing it, Google explained in court filings. Only to the last draft did he add 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 Lee's name and the words "attorney work product" weren't 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.

If the drafts hadn't been skipped over, it's entirely possible Lindholm's email never would have come to light, legal experts said. In the discovery phase, each side draws up a "privilege log" that lists the documents they're withholding, with a brief description of why they're privileged.

It's not rare for attorneys to challenge items in the privilege log, but it's also not an everyday occurrence. Since the Lindholm email was addressed to a Google attorney, it's entirely possible Oracle never would have challenged it, meaning its content never would have been made public, said Stephen Hall, a partner with the law firm Bradley Arant Boult Cummings.

"If they had found that document and put it on the privilege log, it might very well not have been an issue," he said.

"It would certainly have been a lot less likely" that the email would have ended up in the public record, said Rakesh Madhava, CEO of Nextpoint, which provides an online e-discovery service.

Once Oracle had seen the document, it fought to keep it in the open. A magistrate judge determined it was not privileged, because the body of the text was addressed to Rubin, not a lawyer, and because Lindholm wrote that he was acting at the behest of Page and Brin. That made it a business discussion about how to negotiate with Oracle, the judge concluded, and simply addressing it to a lawyer didn't make it privileged. Alsup last week agreed with her.

It's unclear exactly how the email drafts slipped through the net, and Google and two of its law firms did not reply to requests for comment. In a court filing, Google's lawyers said their "electronic scanning tools" -- which basically 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."


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