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Background The Bear Flag League, a coalition of 80 bloggers with California connections, filed an Application To File An Amicus Curiae And Proposed Amicus Brief with the California Sixth District Court of Appeal in O'Grady v. Superior Court, the appellate proceeding arising from a suit filed by Apple in Santa Clara County Superior Court. In the underlying action, Apple sued unnamed defendants who allegedly revealed trade secrets about Apple's FireWire audio interface for GarageBand on two websites, AppleInsider and PowerPage.
December 2004: Apple files suit against Doe 1, an unknown individual, and Does 2-25, inclusive. December 24, 2004: trial court grants Apple's motion to take expediated document discovery. February 4, 2005: trial court grants Apple's request to permit specific discovery directed at Nfox, the email service provider for PowerPage. March 4, 2005: trial court hears arguments on Jason O'Grady and others' motion for a protective order to the subpoena issued on Nfox. March 11, 2005: trial court issues a ruling on the motion (in Apple Computer v. Doe). While the Court made "no findings as to the ultimate merits of Apple's claims," it orders defendants to comply with Apple's discovery attempts to identify the source of the leaked information. Nfox is ordered to comply with the subpoena. March 22, 2005: Online reporters file appeal to March 11 ruling. April 19, 2004: Bear Flag League files application for amicus brief and proposed amicus brief
In the March 11 ruling, Hon. James P. Kleinberg states that the Court's decision to deny the request for a protective order has little to do with constitutional protections of journalism. Rather, "What underlies this decision is the publishing of information that at this early stage of litigation fits squarely within the definition of trade secret. . . The Court sees no reason to abandon that right [of trade secret protection] even if it were to assume, arguendo, movants are "journalists" as they claim they are." (p. 13) The Bear Flag League is a coalition that strongly advocates protection for bloggers. In their proposed amicus brief, the BFL opens with the argument that "news-gathering" bloggers are entitled to immunity under California's "Reporter Shield." While this is an important and closely-monitored issue to bloggers, it is not directly responsive to the Court's reasoning in the March 11 decision. To convince the Court to overturn its decision to deny the request for a protective order on a subpoena of an email service provider, the nature of the information needs to be put at issue. The BFL brief does go on to address this point by arguing that the subpoena on Nfox would violate the Stored Communication Act, 18 U.S.C. 2701. Though the BFL's argument is painted with broad strokes, it may prompt the Court to ask for a full amicus brief on the issue. The prospect that bloggers may face liability and/or sanctions for reporting certain information that may be protected has serious implications on weblogs and on free expression. Among the current legal issues impacting blogging, Apple v. Doe represents a potential milestone in the development of the weblog medium. Bear in mind that this litigation is still in the early phase of discovery.
"...an interested public is not the same thing as the public interest." (p. 12) "Let there be no doubt: nothing in this order is meant to preclude the exchange of opinions and ideas, speculation about the future, or analyses of known facts. The rumor and opinion mills may continue to run at full speed." (p. 13)
Jeffrey Lewis and Benjamin P. Pugh of ENTERPRISE COUNSEL GROUP, ALC, Irvine, CA, for Bear Flag League Kurt Opsahl, EFF counsel for journalists Monish Bhatia, Jason O'Grady and "Kasper Jade" George A. Riley and David Eberhart of O'Melveny & Myers LLP, San Francisco, for Apple, Inc. Posted by Andrew Zangrilli at April 19, 2005 05:31 PM | TrackBack |