"The question appeared to ask only whether Mr. Schwartz had made a decision not to pursue litigation," Oracle added. "But Mr. Schwartz's answer -- and Google's subsequent use of that answer -- implicates Sun's (now Oracle's) privileged discussions by suggesting that there was an unidentified group of people ("we"), who had made some final decision as to whether to pursue litigation and the strength of those claims."

"What legal grounds Sun's management felt they had or what decisions they were considering is clearly privileged," Oracle said. "Moreover, Mr. Schwartz had no right nor any basis to make such a statement which subjects Oracle to privilege waivers that Mr. Schwartz has no authority to invoke."

Also, "the suggestion that Oracle had decided not [to] sue is clearly against the weight of the evidence presented in this case," Oracle said.

Evidence presented in the trial showed that Sun and Google had discussions following the announcement of Android in 2007, that those talks went on after Oracle bought Sun, and that Google officials considered buying "all the rights to Java" from Sun in order to ward off lawsuits, according to the filing.

If Oracle had decided to rebut Schwartz's testimony at the time he made it, that would have placed the company "in the quandary of having to decide whether to waive privilege on the spot," Oracle added. "If Google is allowed to rely on this testimony, and the jury is allowed to believe that it matters, the trial will divert into an irrelevant sideshow over Mr. Schwartz's subjective state of mind, instead of Sun's affirmative acts.