But the judge noted that the body of the email was addressed only to Rubin. "Simply labeling a document as privileged and confidential or sending it to a lawyer does not automatically confer privilege," Alsup wrote in his order.

The email is important because a jury might see it as evidence that Google knew it needed a license for Java. That could lead to a judgment of willful infringement, which carries a heavier penalty.

At a hearing when the email first surfaced, the judge made clear how damning the email could be. "You're going to be on the losing end of this document with Andy Rubin on the stand," to a Google attorney at the time.

However, it's unclear now when the trial will take place. On Wednesday Alsup , which had been due to begin Oct. 31, because of a scheduling conflict. He did not set a new date.

The IDG News Service