The Supreme Court sided with Google in an $8 billion copyright dispute with Oracle on Monday.  While that in itself doesn’t have any eDiscovery significance, this case has taken many twists and turns over the years and, at one time, Oracle had what appeared to be a smoking gun email inadvertently produced to them by Google.  In the end, it didn’t matter.

As reported by Newser, the case has to do with Google’s creation of the Android operating system, now used on the vast majority of smartphones worldwide, with 71.93 percent!  You thought it was iOS?  Not even close. Regardless, to create Android, which was released in 2007, Google wrote millions of lines of new computer code. But it also used 11,330 lines of code and an organization that’s part of Oracle’s Java platform. Google says what it did is long-settled, common practice in the industry, a practice that has been good for technical progress. And it says there’s no copyright protection for the purely functional, noncreative computer code it used, something that couldn’t be written another way. Oracle, however, says Google “committed an egregious act of plagiarism,” and it sued – a decade ago.

Early in the case (way back in 2011, as reported by Network World), 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 have proved 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 read 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.

Voila, one smoking gun email inadvertently produced.

When Google’s lawyers learned of the inadvertent disclosure, they naturally filed a motion to “claw it back” on the grounds it was “unintentionally produced privileged material.” Oracle objected, and California District Judge William Alsup refused to exclude the email at trial (which was upheld on appeal by the 9th Circuit Court via denial of the petition of a writ of mandamus).

Nonetheless, Judge Alsup ultimately dismissed claims in May 2012 that its Android mobile phone platform infringes Oracle’s copyrights relating to the Java computer language.  Oracle appealed and the case dragged on for years, with Judge Alsup at one point ordering both Google and Oracle to inform the court whether they would ban social media research on the jury pool.

The case eventually made it all the way to SCOTUS, which ruled 6-2 in Google’s favor. Only eight justices heard the case because it was argued in October, after the death of Justice Ruth Bader Ginsburg but before Justice Amy Coney Barrett joined the court.  “In reviewing that decision, we assume, for argument’s sake, that the material was copyrightable,” Justice Stephen Breyer wrote. “But we hold that the copying here at issue nonetheless constituted a fair use. Hence, Google’s copying did not violate the copyright law.”

So, the smoking gun email didn’t hurt Google in this case, but it sure made eDiscovery professionals take note of how drafts of documents not yet designated as privileged could be inadvertently disclosed.  Predictive coding (in its infancy back then) and other machine learning approaches are helping identify documents like these that might be previously missed, even by the king of search itself, Google.  Lesson learned.

So, what do you think?  Have you ever inadvertently disclosed a draft of a document that was otherwise protected?  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 my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.