Oracle America, Inc. v. Google Inc.

Filing 255

ORDER DENYING LEAVE TO FILE MOTIONS TO SEAL AND REDACT DAUBERT RECORD re #247 Letter filed by Google Inc.. Signed by Judge Alsup on August 1, 2011. (whalc1, COURT STAFF) (Filed on 8/1/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ORACLE AMERICA, INC.,

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For the Northern District of California

United States District Court

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No. C 10-03561 WHA

Plaintiff,
v.

ORDER DENYING
LEAVE TO FILE
MOTIONS TO
SEAL AND REDACT
DAUBERT RECORD

GOOGLE INC.,
Defendant.
/

On August 28, 2011, Google Inc. filed a précis requesting permission to file “two short

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motions.” Google seeks to seal and redact portions of the public record containing references to a

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Google document cited by Oracle America, Inc. at the July 21 hearing on Google’s Daubert

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motion. Google asserts that the document is subject to the attorney-client privilege but was

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inadvertently produced to Oracle. Google identifies approximately five pages of the hearing

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transcript and four lines of the July 22 order as supposedly requiring protection (Dkt. No. 247).

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Oracle opposes Google’s request (Dkt. No. 248). Good cause not having been shown, the request

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is DENIED. Google may not file its proposed motions.

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The attorney-client privilege protects communications made between an attorney and his

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or her client for the purpose of obtaining legal advice. The document in question here is,

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according to Google, an incomplete draft of an e-mail message. Google states that the addressee

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field of the draft message is blank, indicating that the draft never was sent to anyone

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(Dkt. No. 247 at 2). Thus, the document is not a communication of any type, much less a

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communication protected by the attorney-client privilege.

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Google argues that the document “is indisputably privileged, because the final version of

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the document, which appears on Google’s privilege log, was sent to, among others, Google’s

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in-house attorneys, and was also prominently marked ‘Attorney Work Product’” (ibid.). This

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argument is unavailing. First, the supposedly privileged status of a different document has no

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bearing on whether this document is protected by the attorney-client privilege. Second, simply

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labeling a document as attorney work product or sending it to a lawyer (measures which, in any

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event, were not taken with respect to the document in question) does not automatically trigger

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privilege. Google has provided no indication that the disputed document is in fact subject to the

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claimed attorney-client privilege. Allowing Google to file its proposed motions would be futile.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: August 1, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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