00141-Memo of Points
00141-Memo of Points
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2 I. INTRODUCTION ...................................................................................................................... 1
4 A. Procedural History.................................................................................................................. 2
5 B. Factual Background................................................................................................................ 4
8 III. ARGUMENT.............................................................................................................................. 6
9 A. California’s Constitution, Evidence Code and Case Law Shields Journalists ....................... 7
12 1. The Non-Party Journalists Are Entitled to the Federal First Amendment Privilege........ 10
13 2. Apple Has Not Met Its Burden to Overcome the First Amendment Reporter’s Privilege11
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 TABLE OF AUTHORITIES
2 Cases
3 Buckley v. American Constitutional Law Found., 525 U.S. 182 (1999) .......................................... 13
4 Columbia Insurance Company v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999) ..................... 13
6 Democratic National Committee v. McCord, 356 F.Supp. 1394 (D.D.C. 1973) ............................. 10
7 Doe v. 2TheMart.com Inc., 140 F.Supp.2d 1088 (W.D. Wash. 2001) ....................................... 13, 14
8 Food Lion v. Capitol Cities/ABC, 1996 WL 575946, 24 Media L. Rep. 2431 (M.D.N.C. 1996).... 15
17 Phillip Morris v. ABC, 1995 WL 301428, 23 Media L. Rep. 1434 (Va. Cir. Ct. 1996) .................. 15
26 von Bulow v. von Bulow, 811 F.2d 136 (2nd Cir.) ........................................................................... 11
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 Statutes
7 Other Authorities
8 Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Primary Elec.
(June 3, 1980) ................................................................................................................................. 1
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Bradley S. Miller, Note, The Big Chill: Third-Party Documents and the Reporter's Privilege,
10 29 U. MICH. J.L. REF. 613 (1996) ................................................................................................ 14
11 James Madison, WRITINGS OF JAMES MADISON (G. Hunt ed., 1910) ................................................ 1
12 Constitutional Provisions
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 I. INTRODUCTION
3 (Goldstein Decl., ¶ 18.) Journalists must be able to promise confidentiality in order to obtain
5 unpublished sources and information will cause individuals to refuse to talk to reporters, resulting
6 in a “chilling effect” on the free flow of information and the public’s right to know.
7 The reporter’s need for confidential sources is so important to society that the people of
8 California elevated the reporter’s shield against discovery from a statutory protection to the
9 California Constitution in 1980. As the arguments that accompanied this proposed amendment
10 explained:
11 The free flow of information to the public is one of the most fundamental
cornerstones assuring freedom in America. Guarantees must be provided so that
12 information to the people is not inhibited. … And the use of confidential sources is
critical to the gathering of news. Unfortunately, if this right is not protected, the real
13 losers will be all Californians who rely on the unrestrained dissemination of
information by the news media.
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Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Primary Elec. (June 3,
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1980) p. 19 (italics in original); see also Delaney v. Superior Court, 50 Cal.3d 785, 794-796 (1990)
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(discussing the proposition).
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The reporter’s privilege applies to online publication and print publication equally. Both
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print magazines and online magazines share the essential characteristics of journalism, especially
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as more and more news publications are exclusively online (e.g., online news sites Slate
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<www.slate.com>, Salon <www.salon.com>, and C|Net News <www.news.com>). (Goldstein
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Decl., ¶ 23-29; Gillmor Decl., ¶ 7-8, Ex. F-K). Indeed, online news sources are often the place
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where news first breaks, before traditional journalists get the story. (Gillmor Decl., ¶ 9, Ex. L-M.)
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Moreover, coverage by online news periodicals has made important contributions to public debate.
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(Id. at ¶ 10, Ex. N-O.)
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As James Madison understood, “[a] popular government without popular information or the
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means of acquiring it is but a prologue to a farce or tragedy or perhaps both.” 9 James Madison,
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WRITINGS OF JAMES MADISON, 103 (G. Hunt ed., 1910). Protections for the media’s sources and
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 unpublished information are critical means for journalists in acquiring information and
3 O’Grady, Monish Bhatia and Kasper Jade1 (collectively the “Non-Party Journalists”) must be
4 protected by the reporter’s shield embodied both in Article I, Section 2(b) of the California
5 Constitution and in California Evidence Code Section 1070, as well as the reporter’s privilege
7 Likewise, the shield protects a reporter’s sources and unpublished information regardless of
8 the location—journalists regularly use the services of third parties in preparing stories, and a
9 litigant cannot circumvent the strong public policy interests underlying the shield and First
10 Amendment privilege simply by seeking a journalist’s records from a third-party entrusted with
11 custody of them.
12 Because of the protections provided by these principles, the Non-Party Journalists cannot
13 be compelled to disclose the source of any information procured in connection with their
16 order is proper because Apple Computer, Inc. (“Apple”) cannot show a likelihood that the
17 information it seeks from the Non-Party Journalists will lead to the discovery of admissible
18 evidence, and therefore cannot overcome the burden, expense and intrusiveness that its discovery
19 will cause.
20 II. BACKGROUND
21 A. Procedural History
22 Apple filed this action on December 13, 2004, and simultaneously filed an “Ex Parte
23 Application For An Order For Issuance Of Commission And Leave To Serve Subpoenas,” seeking
24 subpoenas to three online news sites: PowerPage, Apple Insider, and Think Secret (collectively, the
25 “Apple News Sites”). For each Apple News Site, Apple sought to identify the sources used in the
26 site’s news articles and unpublished information used for preparing those articles.
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“Kasper Jade” is a pseudonym.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 This court granted Apple’s application on December 14, 2004, authorizing Apple to serve
3 all documents relating to any information posted on its site relating to an unreleased Apple product
4 code named ‘Asteroid’ …” and to serve subpoenas on each of the Apple News Sites for
5 information leading to the identity of “any individual or individuals who have knowledge regarding
6 the posts on its site disclosing information about the Product … and individuals who received
7 and/or edited information related to the Product.” Order Granting Ex Parte Application for
8 Discovery and Issuance of Commissions, Dec. 14, 2004 (“Discovery Order 1”).
9 Apple drafted a subpoena to Apple Insider (care of non-party Monish Bhatia) seeking
10 information to identify the sources used in Apple Insider’s article, unpublished information used
11 for preparing the article, as well as the identify of the author, a reporter writing under the
13 On December 14, Apple also obtained a commission for a subpoena to Red Widget,
15 PowerPage was owned by Red Widget. No Texas subpoena was ever served on Red Widget.
16 Nevertheless, Karl Kraft, who is affiliated with Red Widget and also president of email service
17 provider Nfox.com, Inc., informed Apple of his belief that certain email messages in O’Grady’s
18 PowerPage’s email account contained the term “Asteroid.”3 (Opsahl Declaration, ¶¶ 2-3 and Ex. B;
20 On February 3, 2005, Apple sent a facsimile notifying the Non-Party Journalists’ counsel of
21 its intention to seek an ex parte order authorizing expedited discovery to Nfox. (Id. at ¶ 7 and Ex.
22 C.) The Non-Party Journalists’ counsel responded the same day, asking Apple to meet and confer
23 about the important issues raised by Apple’s discovery requests. (Id. at ¶ 8 and Ex. D.)
25 informal resolution of each issue presented by this motion. (Id. at ¶¶ 6, 10-12, Ex. J-L.)
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There is no “powerpage.com;” presumably Apple’s proposed order had meant to say “.org.”
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By communicating the content of O’Grady’s communications to Apple, apparently without
28 prompting, Nfox violated the Stored Communications Act, 18 U.S.C. § 2702.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 On February 4, 2005, this Court granted Apple’s ex parte application, authorizing
2 subpoenas to Nfox and its principal, Karl Kraft. (Order Granting Ex Parte Application for an Order
3 Granting Leave to Serve Expedited Disc. on Nfox.com and Karl Kraft, February 4, 2005,
4 hereinafter “Discovery Order 2.”) Three California subpoenas/deposition notices were served the
5 same day, and three Nevada subpoenas the following week. (Opsahl Decl., ¶¶ 7-8, Ex. E-H.)
6 B. Factual Background
7 1. Jason O’Grady and O’Grady’s PowerPage
8 Non-party Jason O’Grady is a journalist who owns and operates “O’Grady’s PowerPage,”
9 an online news magazine that provides its readers with news and information about Apple
10 Macintosh compatible software and hardware products. (O’Grady Decl. at ¶ 1.) O’Grady has been
11 working with Macintosh computers since 1985, starting with the original 128k Apple Macintosh
12 computer. (Id. at ¶ 2.) He co-founded the first dedicated Apple PowerBook User Group (PPUG) in
15 MacAddict, MacPower (Japan). (Id. at ¶ 3.) O’Grady has an article published in MacWorld
16 magazine’s February 2005 issue, and is currently writing an article for an upcoming edition. (Id.)
17 These print magazines are exclusively dedicated to the same news beat as PowerPage, i.e., news
18 related to Apple Macintosh and Apple Macintosh-compatible products. (Id). He has also written
19 chapters for The Macintosh Bible, Eighth Edition and The Macintosh Bible, Panther Edition
20 (Peachpit Press), books that provide information for users of Macintosh computers. Id.
21 Based in Abington, Pennsylvania, PowerPage began publishing daily news since December
22 1995. (Id. at ¶¶ 5-6.) PowerPage is currently located at the web address www.powerpage.org,
23 publishing at that location since 2002. (Id. at ¶ 7.) Previously, PowerPage published under
24 Go2mac.com and ogrady.org. (Id.) Over the last two years, PowerPage has averaged over 300,000
25 unique visits per month. (Id. at ¶ 11.) By comparison, the leading print magazine for Macintosh
26 related news is MacWorld, which had an average monthly paid circulation of 253,241 for the first
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 six months of 2004.4 (Opsahl Decl., ¶ 9, Ex. I.)
2 PowerPage includes news reports, feature stories and editorials, as well as how-to’s, tips
3 and other practical advice for Macintosh users. (O’Grady Decl., ¶ 9 and Ex. B.) It publishes an
4 average of 15-20 articles per week, with over 60 articles published in the month of November
5 2004. (Id. at ¶ 10.) O’Grady functions as the publisher and one of nine editors and reporters for
6 PowerPage. (Id. at ¶ 8 and Ex. A.) O’Grady has been credentialed as media for the MacWorld
7 Exposition, which is the premier trade show and conference dedicated to Macintosh computers and
8 peripherals. (Id. at ¶ 12 and Ex. C.) Apple has provided O’Grady with free access to its “.Mac”
9 service as a member of the media, and Apple CEO Steve Jobs has personally provided quotes for
10 PowerPage in response to O’Grady’s media inquiries. (Id. at ¶¶ 13-14 and Ex. D.)
11 On November 19, 2004, O’Grady wrote an article for PowerPage discussing a rumored new
12 product from Apple called “Asteroid,” with two follow-up articles on November 22 and 23. (Id. at
13 ¶¶ 15-16.) The information in the article was obtained for the journalistic purpose of
14 communicating information to the public. (Id. at ¶ 17-18.) The PowerPage articles reported that
15 Apple was developing an add-on device that would let musicians plug their electric guitars and
16 other instruments into a Macintosh computer. (O’Grady Decl., ¶¶ 15-16 and Ex. E, F & G.) The
17 device was said to contain analog inputs for plugging in instruments or other audio sources, a
18 FireWire connection to the Macintosh computer, along with audio jacks needed to output sound.
19 (Id.) The articles included two artist’s renderings of the rumored device. (Id.) On November 26,
20 2004, PowerPage published an article by an author writing under the pseudonym “Dr. Teeth and
21 the Electric Mayhem,” which summarized some additional details from an article on
22 createdigitalmusic.com and discussed the various artists’ renderings. (O’Grady Decl., ¶ 20a nd Ex.
23 H.)
24 Through an email dated December 7, 2004, to PowerPage, Apple’s counsel demanded that
25 PowerPage remove the four articles, and O’Grady complied shortly after receiving the email
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In addition, MacWorld gave out an average of 132,826 non-paid copies to newly-registered users
28 of Apple products.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 2. Monish Bhatia, Kasper Jade and Apple Insider
2 Non-Party Monish Bhatia is the publisher of the “Mac News Network” (located at
3 www.macnn.com), and provides hosting service to a number of different sites, including Apple
4 Insider, an online news magazine that provides its readers with a collection of articles, editorials,
5 stories, pictures, and other features about Apple Macintosh compatible software and hardware
6 products. (Jade Decl., ¶¶ 2, 7.) Bhatia provides Apple Insider with systems administration,
8 Non-party Kasper Jade owns and operates Apple Insider and performs reporting and
9 editorial functions under the pseudonym “Kasper Jade.” (Id. at ¶ 1.) He has served as the primary
10 publisher, editor and reporter for Apple Insider since the spring of 2003, and previously served as a
11 reporter for Apple Insider between September 1998 and April 2001. (Id. at ¶¶ 1, 6.)
12 With servers based in McLean, Virginia, Apple Insider has been publishing daily or near-
13 daily technology news at the web address www.appleinsider.com since September 1998. (Id. at ¶¶
14 3, 7.5.) Apple Insider is a heavily trafficked site. For example, Apple Insider received over 438,000
15 unique visitors in July 2004, the last month for which figures are currently available. (Id. at ¶ 5.)
16 Apple Insider publishes an average of 7 to 15 articles per week. (Id. at ¶ 4.) For example, 39
18 On November 23, 2004, Apple Insider published an article written by Jade entitled “Apple
19 developing FireWire audio interface for GarageBand.” (Id. at ¶ 8 and Ex. B.) The article cited to
20 unnamed sources to provide information about the “Asteroid” product, and contained an artists
22 III. ARGUMENT
23 Pursuant to California Code of Civil Procedure Section 2017(c), any “affected person[s]”
24 may move for a protective order against “burden, expense, or intrusiveness … that … outweighs
25 the likelihood that the information sought will lead to the discovery of admissible evidence.” Cal.
26 Code Civ. Proc. (“CCP”) § 2017(c); see also CCP § 1987.1 (stating that this court is empowered to
27 “make any other order as may be appropriate to protect ... the witness … from unreasonable or
2 and Non-Party Journalists will not lead to the discovery of admissible evidence, and are extremely
3 intrusive and burdensome because they conflict with the public policies embodied in the California
4 reporter shield law, the First Amendment reporter’s privilege, and the reporters’ rights of privacy.
5 Because these laws prevent Apple from receiving the information it seeks, a protective order is
6 appropriate to protect the Non-Party Journalists from undue burden, expense, intrusion, and
10 journalists like the Non-Party Journalists from being required to disclose the information Apple
11 seeks. Cal. Const., art. I, § 2(b). Originally enacted as Section 1070 of the Evidence Code, the
12 people of California elevated the shield to constitutional status in 1980, illustrating the voter’s
13 “intention to favor the interests of the press in confidentiality over the general and fundamental
14 interest of the state in having civil actions determined upon a full development of material facts.”
15 Playboy Enters., Inc. v. Superior Court, 154 Cal.App.3d 14, 27 - 28 (1984). The Constitutional
23 Journalists to produce all documents relating to any information posted on their sites relating to
24 “Asteroid,” which would include unpublished information obtained for drafting the articles, as well
26 As the California Supreme Court held in New York Times Co. v. Superior Court, 51 Cal.3d
27 453, 457 (1990), this Constitutional provision provides “absolute protection to nonparty journalists
28 in civil litigation from being compelled to disclose unpublished information.” This absolute
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 immunity cannot be overcome even “by a showing of need for unpublished information.” Id. at
2 461; see also Miller v. Superior Court, 21 Cal.4th 883, 890 (1999) (“The shield law is, by its own
3 terms, absolute rather than qualified in immunizing a newsperson from contempt for revealing
5 Willon, 47 Cal. App. 4th 1080, 1090-91 (1996) (affirming the absolute nature of the protection in
6 civil cases).
7 Likewise, California cases have recognized that these provisions protect against disclosure
8 of the identity of a source or any information that might lead to the identity of the source. See e.g.
9 Rosato v. Superior Court, 51 Cal.App.3d 190, 218 (1975) (privilege “extends not only to the
10 identity of the source but to the disclosure of any information, in whatever form, which may tend to
15 limitation. Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070. O’Grady and Jade each publishes an
16 online news periodical, edits submission by others and writes news articles. (O’Grady Decl., ¶ 8;
17 Jade Decl., ¶ 1) Bhatia, by virtue of performing technical and administrative functions, is certainly
18 “connected with” the Apple Insider news organization. (Jade Decl., ¶ 7) Indeed, two California
19 cases have even applied the reporter’s shield to protect freelance reporters. People v. Von Villas, 10
20 Cal.App.4th 201, 231-32 (1992) (holding that the shield laws encompassed the writer’s position as
21 a freelance writer even before he entered into publication agreements with two magazines.);
22 Playboy Enterprises, Inc. v. Superior Court, 154 Cal.App.3d at 28-29 (1984) (shield law protects
23 nonparty publisher from the production of notes, tapes and records of an interview conducted by a
24 freelance reporter.) Power Page and Apple Insider are, like newspapers or magazines, news
26 Thus, the Non-Party Journalists can avail themselves of the protection upon the prima facie
27 showing that the information was obtained “for the journalistic purpose of communicating
28 information to the public.” Rancho Publ’ns. v. Superior Court, 68 Cal.App.4th 1538, 1546 (1999)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 (discussing scope of reporter’s shield). The publishers, editors and authors connected with Power
2 Page and Apple Insider are engaged in the process of trade journalism, and communicate their
3 news to hundreds of thousands of visitors per month. (Goldstein Decl., ¶¶ 31-32; Gillmor Decl.,
4 ¶ 4; O’Grady Decl., ¶¶ 5-20; Jade Decl., ¶¶ 2-8.) Accordingly, each of the Non-Party Journalists is
6 The California protection is a shield against contempt, and subpoenaing parties may be
7 entitled to other remedies for failure to comply with a subpoena. New York Times, 51 Cal.3d at 462
8 (citing CCP § 1992.) Regardless of the theoretical availability of a small fine pursuant to Section
9 1992, Apple is unable to show that this discovery will lead to admissible evidence, and therefore
10 unable to justify the burden, expense and intrusion this discovery would cause the Non-Party
11 Journalists.
14 some speakers may be chilled into silence without the promise of confidentiality. Even apart from
16 qualified privilege to journalists. See Mitchell v. Superior Court, 37 Cal.3d 268 (1984) (holding
17 that the first Amendment to the federal Constitution also confers “a qualified privilege to withhold
18 disclosure of the identity of confidential sources and of unpublished information supplied by such
19 sources.”); Rancho Publ’ns., 68 Cal.App.4th at 1547-50 (listing cases in which California courts
20 have applied “the qualified constitutional privilege to block civil discovery that impinges upon free
21 speech or privacy concerns of the recipients of discovery demands and innocent third parties as
22 well.”); see also Shoen v. Shoen, 5 F.3d 1289, 1293-97 (9th Cir. 1993) (Shoen I) (broadly applying
24 As noted by the California Supreme Court, federal Judge J. Skelly Wright eloquently
26 The First Amendment … guarantees a free press primarily because of the important
role it can play as ‘a vital source of public information.’ … Without an unfettered
27 press, citizens would be far less able to make informed political, social, and
economic choices. But the press’ function as a vital source of information is
28 weakened whenever the ability of journalists to gather news is impaired.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 Compelling a reporter to disclose the identity of a source may significantly interfere
with this news gathering ability; journalists frequently depend on informants to
2 gather news, and confidentiality is often essential to establishing a relationship with
an informant.
3
Mitchell, 37 Cal.3d at 274-75 (quoting Zerilli v. Smith, 656 F.2d 705, 710-11 (D.C.Cir. 1981)
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(internal citations omitted)). Mitchell also cited the “dramatic illustrations of the value of the
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reporter’s privilege” in Democratic National Committee v. McCord, 356 F.Supp. 1394, 1397
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(D.D.C. 1973) (considering a subpoena for sources who supplied media with information regarding
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the 1972 Watergate burglary, court “cannot blind itself to the possible ‘chilling effect’ the
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enforcement of these broad subpoenas would have on the flow of information to the press, and so
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to the public,”) and Gilbert v. Allied Chemical Corp. 411 F.Supp. 505, 508 (E.D.Va. 1976) (“[I]f a
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news station or newspaper is forced to reveal the confidences of their reporters, the sources so
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disclosed, other confidential sources of other reporters, and potential confidential sources will be
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significantly deterred from furnishing further information to the press”). Mitchell, 37 Cal.3d at 275.
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The First Amendment’s protections are fully applicable to the Internet. As explained by the
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U.S. Supreme Court:
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This dynamic, multifaceted category of communication includes not only traditional
16 print and news services, but also audio, video, and still images, as well as
interactive, real-time dialogue. Through the use of chat rooms, any person with a
17 phone line can become a town crier with a voice that resonates farther than it could
from any soapbox. Through the use of Web pages, mail exploders, and newsgroups,
18 the same individual can become a pamphleteer. As the District Court found, “the
content on the Internet is as diverse as human thought.”
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Reno v. ACLU, 521 U.S. 844, 870 (1997) (citations omitted). Accordingly, the Supreme Court
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applied unqualified First Amendment scrutiny to the new medium. Id.
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1. The Non-Party Journalists Are Entitled to the Federal First
22 Amendment Privilege
23 The California Supreme Court has held that under the First Amendment, “in a civil action a
24 reporter, editor, or publisher has a qualified privilege to withhold disclosure of the identity of
25 confidential sources and of unpublished information supplied by such sources.” Mitchell, 37 Cal.3d
26 at 279 (applying qualified constitutional immunity rather than shield law to allow newspersons to
27 withhold identity of sources in defamation suit.) As reporters, editors or publishers, the Non-Party
28 Journalists are entitled to this constitutional privilege. (See Goldstein Decl., ¶ 31.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 Likewise, in the federal courts, the First Amendment privilege has been applied broadly to
2 protect journalists of all stripes. In Shoen I, the Ninth Circuit found that a book writer had standing
4 What makes journalism journalism is not its format but its content. . . . The test . . .
is whether the person seeking to invoke the privilege had “the intent to use material
5 – sought, gathered or received – to disseminate information to the public and
[whether] such intent existed at the inception of the newsgathering process.” If both
6 conditions are satisfied, then the privilege may be invoked.
7 Shoen I, 5 F.3d at 1293 (quoting test in von Bulow v. von Bulow, 811 F.2d 136, 144 (2nd Cir.
8 1987), cert denied 481 U.S. 1015 (1987)). Shoen I saw no difference in “manner of dissemination”
9 because “‘[t]he press in its historic connotation comprehends every sort of publication which
10 affords a vehicle of information and opinion.’” Id. (quoting von Bulow, 811 F.2d at 144); see also
11 Goldstein Decl. ¶13-17, 29. Here, the Non-Party Journalists intended to use the material received
12 from confidential sources to disseminate information to the public, and did so when the articles
14 2. Apple Has Not Met Its Burden to Overcome the First Amendment
Reporter’s Privilege
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In the ordinary civil case the litigant’s “interest in disclosure should yield to the journalist’s
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privilege.” Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995) (Shoen II) (quoting Zerilli 656 F.2d at
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712). Compelled disclosure from a journalist must be a “‘last resort’ permissible only when the
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party seeking disclosure has no other practical means of obtaining the information.” Mitchell, 37
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Cal.3d at 282 (citations omitted). In Mitchell, the California Supreme Court held that courts
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should evaluate five factors in determining whether disclosure by a reporter should be compelled.
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Id. at 279-83.
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The first Mitchell factor, whether the reporter is a party to the litigation, counsels against
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disclosure. The Non-Party Journalists are not parties to this litigation. The second Mitchell factor,
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whether the information sought “goes to the heart of the plaintiff’s claim,” also counsels against
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disclosure. Id. at 280. At its heart, Apple's claim indicates a failure of its own mechanisms for
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preventing the dissemination of alleged trade secret information to the news media by Apple's own
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employees. (See Complaint ¶ 9). There is no indication of industrial espionage by a competitor, a
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 profit motive or even malice. Apple should deal with its problems with its employees internally,
4 Mitchell, 37 Cal.3d at 280. Yet, much of the proposed discovery goes beyond Apple’s core trade
5 secret claim. For example, Apple has sought to obtain identity information for the pseudonymous
6 reporter “Dr. Teeth,” who was merely summarizing publicly available information, and
7 commenting on already existing artists’ renderings. (Disc. Order 1; O’Grady Decl. at ¶20 and
8 Exhibit H.) Likewise, Apple seeks identity information for Bob Borries and Paul Scates, two artists
9 who created rendering of what the “Asteroid” product might look like, without any showing that
10 these renderings were based on trade secret information. Disc. Order 1. The subpoenas served on
11 Nfox, O’Grady’s email service provider, seek the identity and communications of “any individual
12 ... who provided information related to the Product [Asteroid],” a broad category which would
13 include people who provided non-trade secret information. See Disc. Order 2.
14 Under the third Mitchell factor, Apple must show that the material sought is unavailable
15 despite the exhaustion of all reasonable alternative sources. Mitchell, 37 Cal.3d at 282. Seeking
16 information from reporters must be the “‘last resort,’” not the first resort as Apple is attempting
17 here. Id. In using the term “exhaust,” the Mitchell Court meant pursuing all alternative avenues of
18 discovery to reduce “to the core,” whatever information remains unavailable. Id. To overcome the
19 qualified privilege, Apple must first investigate its own house before seeking to disturb the
20 freedom of the press and disclose those efforts and the results of those efforts to the court in detail.
21 Id. (denying discovery where “plaintiffs made no showing that they have exhausted alternative
22 sources of information.”)
23 The fourth Mitchell factor – great public importance and a substantial risk of harm to the
24 source – neither favors disclosure nor discourages it. The fifth Mitchell factor – establishing a
25 prima facie showing on the underlying claim – only applies where the reporter is a party-defendant.
26 Id. at 283. Accordingly, the independent First Amendment privilege provides an additional reason
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR PROTECTIVE ORDER
1 3. The First Amendment Also Protects Pseudonymous Speech
2 Independent of the reporter’s privilege, the First Amendment protects the privacy rights of
3 all speakers, reporters or not, who “wish to promulgate their information and ideas in a public
4 forum while keeping their identities secret.” Rancho Publ’ns., 68 Cal.App.4th at 1547.
5 Accordingly, the First Amendment requires courts to “carefully balance the ‘compelling’ public
6 need to disclose against the confidentiality interests to withhold, giving great weight to
8 For this reason, courts have recognized that “[p]eople … should be able to participate
9 online without fear that someone who wishes to harass or embarrass them can file a frivolous
10 lawsuit and thereby gain the power of the court’s order to discover their identity[ies].” Columbia
11 Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999).
12 The Supreme Court has repeatedly upheld the First Amendment right to speak
13 anonymously. Buckley v. American Constitutional Law Found., 525 U.S. 182, 197-200 (1999);
14 McIntyre v. Ohio Elections Comm., 514 U.S. 334, 341-44 (1995); Talley v. California, 362 U.S. 60,
15 64 (1960). These cases celebrate the important role played by anonymous or pseudonymous
16 writings through history, from Ben Franklin’s anonymous scoldings of 18th-century Boston
17 delivered under the name “Silence Dogood” to the explicitly political advocacy of the Federalist
19 [A]n author is generally free to decide whether or not to disclose his or her true
identity. The decision in favor of anonymity may be motivated by fear of economic
20 or official retaliation, by concern about social ostracism, or merely by a desire to
preserve as much of one’s privacy as possible. Whatever the motivation may be, . .
21 . the interest in having anonymous works enter the marketplace of ideas
unquestionably outweighs any public interest in requiring disclosure as a condition
22 of entry. Accordingly, an author’s decision to remain anonymous, like other
decisions concerning omissions or additions to the content of a publication, is an
23 aspect of the freedom of speech protected by the First Amendment.
25 In Doe v. 2TheMart.com Inc., 140 F.Supp.2d 1088 (W.D. Wash. 2001), the federal court
26 considered a case in which a large corporation attempted to use a subpoena to obtain the identities
28 petitioner had “failed to demonstrate that the identity of these Internet users is directly and
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1 materially relevant to a core defense in the underlying securities litigation,” the court granted the
2 speakers’ motion to quash the subpoena. Id. at 1097. The court said, “The free exchange of ideas
3 on the Internet is driven in large part by the ability of Internet users to communicate
4 anonymously.” Id. at 1093. Without such ability, people may no longer participate in public
5 message boards. “If Internet users could be stripped of that anonymity by a civil subpoena enforced
6 under the liberal rules of civil discovery, this would have a significant chilling effect on Internet
8 2TheMart’s First Amendment balancing test protects non-party reporters “Dr. Teeth” and
9 Jade’s rights to privacy. Each has elected to exercise his fundamental right to speak
10 pseudonymously. Apple’s unserved subpoena to Apple Insider seeks to obtain Jade’s true identity,
11 presumably for the purpose of issuing a subpoena to Jade for unpublished information from his
12 story and the identities of his confidential sources. (See Disc. Order 1 (also permitting discovery of
13 the identity of “Dr. Teeth.”) Because the reporter’s shield provisions discussed above would
14 protect this underlying information, Apple cannot demonstrate that these reporter’s identity would
15 lead to admissible evidence, and therefore cannot overcome their First Amendment interest.
18 explained by Rancho Publications, “[c]ompelled source disclosure runs afoul of the First
19 Amendment because some speakers may be chilled into silence without the cover of anonymity.”
20 Rancho Publ’ns., 68 Cal.App.4th at 1547. Any material subject to the reporter’s privilege remain
21 protected, regardless of whether they are held on behalf of a reporter by a third-party, because it is
22 their very disclosure that offends the First Amendment. “‘Third-party discovery poses an
23 unmistakable threat to source confidentiality. If a litigant subpoenas the proper documents, it can
24 easily discover the identity of a source.’” Id. at 1548, n.6 (quoting Bradley S. Miller, Note, The Big
25 Chill: Third-Party Documents and the Reporter’s Privilege, 29 U. MICH. J.L. REFORM 613, 631
26 (1996) (arguing that “[b]ecause freedom of the press depends on journalists’ abilities to obtain
28 While no California case has directly addressed the issue of confidential source information
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1 held on behalf of a reporter by third parties, California courts have long held that constitutional
2 interests protect documents held by third parties. See, e.g. Valley Bank of Nevada v. Superior
3 Court, 15 Cal.3d 652, 657-59 (1975) (right of privacy protects financial records held by bank);
4 Olympic Club v. Superior Court, 229 Cal.App.3d 358, 361-62 (1991) (right of association protects
6 Other jurisdictions have applied the reporter’s privilege to records held by a third party. In
7 Phillip Morris v. ABC, 1995 WL 301428 at *6, 23 Media L. Rep. 1434 (Va. Cir. Ct., Jan. 26, 1995)
8 the court correctly understood, “[t]he subpoena of third party records … is tantamount to asking the
9 reporter directly, therefore the reporter’s qualified privilege against disclosure of confidential
10 sources is held to extend to any and all documentary or electronically compiled evidence that is the
11 product of the reporter’s news gathering activities.” Likewise, in Food Lion v. Capitol Cities/ABC,
12 1996 WL 575946, at *2, 24 Media L. Rep. 2431 (M.D.N.C., Sept. 6, 1996), the court found that
13 subpoenas for reporter’s records held by third parties “clearly infringe ABC’s First Amendment
14 rights with regard to its confidential sources” because they “will necessarily tend to reveal
15 confidential sources.”
16 In addition, email service providers, such as Nfox.com, Inc. are specifically prohibited by
17 federal law from “knowingly divulg[ing] to any person or entity the contents of a communication
18 while in electronic storage by that service,” with limited exceptions that do not apply here.
19 18 U.S.C. § 2702. Accordingly, the protective order should include records held by third parties,
21 IV. CONCLUSION
22 For the reasons stated above, this court should grant the Non-Party Journalists’ Motion for
23 Protective Order.
26
Kurt B. Opsahl
27 Attorneys for Non-Parties JASON O’GRADY,
MONISH BHATIA, and KASPER JADE
28
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