Breaking News: Federal Circuit Denies Google’s eDiscovery Mandamus Petition

The U.S. Court of Appeals for the Federal Circuit dealt Google a devastating blow Monday in connection with Oracle America’s patent and copyright infringement suit against Google involving features of Java and Android. The Federal Circuit affirmed the district court’s order that a key email was not entitled to protection under the attorney-client privilege.

Google had argued that the email was privileged under Upjohn Co. v. United States, asserting that the message reflected discussions about litigation strategy between a company engineer and in-house counsel. While acknowledging that Upjohn would protect such discussions, the court rejected that characterization of the email.  Instead, the court held that the email reflected a tactical discussion about “negotiation strategy” with Google management, not an “infringement or invalidity analysis” with Google counsel.

Getting beyond the core privilege issues, Google might have avoided this dispute had it withheld the eight earlier drafts of the email that it produced to Oracle. As we discussed in our previous post, organizations conducting privilege reviews should consider using robust, next generation eDiscovery technology such as email analytical software, that could have isolated the drafts and potentially removed them from production. Other technological capabilities, such as Near Duplicate Identification, could also have helped identify draft materials and marry them up with finals marked as privileged. As this case shows, in the fast moving era of eDiscovery, having the right technology is essential for maintaining a strategic advantage in litigation.

Background:

Breaking News: Federal Circuit Denies Google’s eDiscovery Mandamus Petition
Source: original article
Author: Philip Favro
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

Related posts:

1. California Federal Court Grants Motion to Adopt Version of Model Order on E-Discovery in Patent Cases Promulgated by Federal Circuit – Electronic Discovery
2. Breaking News: Pippins Court Affirms Need for Cooperation and Proportionality in eDiscovery – Electronic Discovery
3. Breaking News: Flagg v. City of Detroit Holds that Governments Have Same eDiscovery Duties as Other Organizations – Electronic Discovery
4. The Federal Circuit’s New Model Order on E-Discovery – Electronic Discovery
5. Breaking News: $919 Million Verdict for DuPont in Trade Secret Theft and eDiscovery Sanctions Case – E-Discovery
6. Third Circuit Considers Privacy Interests in Electronically Collected Information and Whether Such Information is Voluntarily Publicized By User of Electronic Communication Devices – eDiscovery
7. The Tenth Circuit Speaks! – Electronic Discovery
8. Third Circuit Holds That Plaintiffs Lack Standing to Sue for Data Breach Where Alleged Harm is Only Speculation That Personal and Financial Information May Be Misused – Electronic Discovery