The long-running legal battle between the state of Oregon and Oracle America Inc. over who's responsible for the $300 million screw-up of Cover Oregon continues—and the latest skirmish involves Oracle founder and chairman Larry Ellison.
In late 2013, Ellison, then still Oracle's CEO, asked Oracle's chief software architect, Edward Screven, for daily reports on Oracle's troubled efforts to build a platform that would allow Oregonians to sign up for health insurance online.
In an April 13 filing in Marion County Circuit Court, the Oregon Department of Justice says that between Nov. 19, 2013, and Dec. 15, 2013, Screven sent Ellison 41 emails and Ellison sent Screven two in return.
As part of the state's ongoing lawsuit against Oracle, state lawyers have asked Oracle to produce those emails.
At issue is whether the platform Oracle built for Oregon was junk, as the state contends, or initially troubled or eventually functional, as Oracle argues.
But Oracle has so far refused to produce the Ellison emails, saying that because the company's general counsel was copied on the electronic correspondence, the communications are protected under attorney-client privilege.
The state says copying general counsel Dorian Daley was merely a subterfuge aimed at keeping the emails confidential, rather than a genuine attempt to seek legal advice, which could qualify for privilege. It wants Judge Courtland Geyer to order Oracle to cough up the emails.
"Copying an attorney on an email does not convert an otherwise non-privileged business or technical email into a privileged one," wrote DOJ special assistant attorney general Robert Weaver in the state's April 13 motion.
Ironically, Oracle found itself on the other side of what Weaver argues in his motion is an analogous situation—while sparring with Google in federal court in California.
In that case, Google founders Larry Page and Sergei Brin requested technical information from a Google engineer. Rather than sending the information to them directly, the engineer sent it to an in-house lawyer. In that case, Weaver writes, Oracle asked the court to force Google to produce the email.
"The court granted Oracle's motion to compel, holding that the communication dealt with technology issues, no legal advice protected by the privilege," Weaver writes. "The reasoning in [that case] squarely applies here."
An Oracle spokesperson was not immediately available for comment.