Appellate arguments heard in Apple v. Does subpoena dispute
A California appellate court heard arguments yesterday on a highly charged discovery issue about a subpoena issued by Apple in its trade secret lawsuit, Apple v. Does. The twists and turns of legal process can be a mystery to non-lawyers and even to those of us who had the dubious honor of sweating through law school and years of practice. So here's some background that may help put yesterday's proceedings in context.
The discovery issue is an offshoot of the main Apple v. Does case, filed in December 2004, in which Apple alleges that unnamed defendants ("Does"), leaked trade secrets about an unreleased Apple product to several blogs, including PowerPage.org and AppleInsider.com, which published the information. The unreleased product, code-named Asteroid, was a firewire interface for GarageBand.
The discovery dispute argued yesterday is a side issue about a subpoena that Apple sent to nFox, the email ISP for PowerPage.org, seeking emails and other information that might reveal the identity of the sources who leaked the alleged trade secrets. PowerPage.org publisher Jason O'Grady, along with two other online publishers, filed a motion for a protective order against Apple in February, 2005 asking for a stay of the nFox subpoena. Neither nFox, O'Grady, nor the other online publishers in the discovery action are named parties in the main lawsuit. O'Grady et al are represented in the discovery suit by The Electronic Frontier Foundation (EFF).
In March, 2005, the lower state court ruled in favor of Apple in the discovery matter, holding that Apple was entitled to subpoena the ISP because the leaked material constitutes proprietary trade secrets that apparently outweigh legal protections for a journalist's sources. The appeal of that ruling was argued yesterday before a three judge panel of the California Court of Appeal 6th Appellate District.
Yesterday's arguments focused on whether legal tests had been met under which a journalist can be compelled to reveal confidential source information. Attorneys argued and answered questions from the appellate judges about whether the leaked information constitutes a protected trade secret, and whether Apple had met the legal standard of exhaustive internal investigation to uncover the identity of the sources of the leak before it issued a subpoena to nFox.
Although these are important issues, this case potentially raises broader questions, including whether bloggers are "journalists" who are entitled to the same First Amendment rights to protect their sources as journalists in other media, and the question of whether trade secrets outweigh the First Amendment rights of any journalists to protect their sources. It remains to be seen whether this appellate court's ruling, which will be issued within 90 days, will touch on these broader issues, which could have serious implications for bloggers and their sources, or will be limited to the more specific matters that were voiced in court yesterday. You can read some of the pleadings and amicus briefs filed by outside parties at the EFF site.
