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O'Grady v. Superior Court 2006 Opinion

O'Grady v. Superior Court 2006 Opinion

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Published by silverbull8
O'Grady v. Superior Court
139 Cal. App. 4th 1423, 2006 WL 1452685 (Cal. App. , 6th Dist., May 26, 2006)
Apple Barred From Obtaining Source Of Blog's Article.

Page 36 "embroil"
O'Grady v. Superior Court
139 Cal. App. 4th 1423, 2006 WL 1452685 (Cal. App. , 6th Dist., May 26, 2006)
Apple Barred From Obtaining Source Of Blog's Article.

Page 36 "embroil"

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Published by: silverbull8 on Oct 20, 2012
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Filed 5/26/06
CERTIFIED FOR PUBLICATION
 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIASIXTH APPELLATE DISTRICTJASON O'GRADY et al.,Petitioners,v.THE SUPERIOR COURT OF SANTACLARA COUNTY,Respondent;APPLE COMPUTER, INC.,Real Party in Interest.H028579(Santa Clara CountySuper. Ct. No. CV032178)Apple Computer, Inc. (Apple), a manufacturer of computer hardware andsoftware, brought this action alleging that persons unknown caused the wrongfulpublication on the World Wide Web of Apple’s secret plans to release a device thatwould facilitate the creation of digital live sound recordings on Apple computers. In aneffort to identify the source of the disclosures, Apple sought and obtained authority toissue civil subpoenas to the publishers of the Web sites where the information appearedand to the email service provider for one of the publishers. The publishers moved for aprotective order to prevent any such discovery. The trial court denied the motion on theground that the publishers had involved themselves in the unlawful misappropriation of atrade secret. We hold that this was error because (1) the subpoena to the email serviceprovider cannot be enforced consistent with the plain terms of the federal StoredCommunications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished
 
 2information from petitioners would be unenforceable through contempt proceedings inlight of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code,§ 1070); and (3) discovery of petitioners’ sources is also barred on this record by theconditional constitutional privilege against compulsory disclosure of confidential sources(see
 Mitchell v. Superior Court 
(1984) 37 Cal.3d 268 (
 Mitchell
)). Accordingly, we willissue a writ of mandate directing the trial court to grant the motion for a protective order.
F
ACTUAL AND
P
ROCEDURAL
B
ACKGROUND
 
Petitioner Jason O’Grady declared below that he owns and operates “O‘Grady’sPowerPage” an “online news magazine” devoted to news and information about AppleMacintosh computers and compatible software and hardware. PowerPage has itsprincipal place of business in Abington, Pennsylvania, and has been published daily since1995. O’Grady acts as its publisher and one of nine editors and reporters. Since 2002 thesite has occupied its present address on the World Wide Web, where it publishes 15 to20 items per week. Over the two years preceding the execution of the declaration, theWeb site received an average of 300,000 unique visits per month.
1
 Under the pseudonym “ ‘Kasper Jade,’ ” a person identifying himself as “primarypublisher, editor and reporter” for Apple Insider declared that Apple Insider is an “onlinenews magazine” devoted to Apple Macintosh computers and related products.
2
Heidentified petitioner Monish Bhatia as the publisher of “Mac News Network,” whichprovides hosting services to a number of Web sites, including “Apple Insider.” Apple
1
“Unique visits” apparently refers to visits from different internet addresses, andthus corresponds to “unique visitors,” which in turn corresponds roughly to thecirculation of a newspaper or periodical. (See Search Engine Positioning<http://www.positioning-search-engines.com/glossary.htm#U> (as of May 23, 2006)[defining “unique visits” as “[i]ndividuals who have visited a Web site (or network) atleast once in a fixed time frame, typically a 30 day period”].)
2
Apple has not objected to this declaration on the ground that it was executedanonymously, or on any ground.
 
 3Insider has published “daily or near-daily technology news” at the same web addresssince 1998 at an average rate of seven to 15 articles per week. In July 2004, it received438,000 unique visitors.Over a period of several days in November 2004, PowerPage and Apple Insiderpublished several articles concerning a rumored new Apple product known as Asteroid orQ97. The first article appeared on PowerPage on November 19, 2004, with O’Grady’sbyline. It stated that PowerPage had “got[ten] it’s [
sic
] hands on this juicy little nuggetabout a new FireWire breakout box for GarageBand that Apple plans to announce atMacWorld Expo SF 2005 in January.”
3
The article described a device that permitted theuser of an Apple computer to record analog audio sources, such as microphones orguitars, using an existing Apple application known as GarageBand, the primary functionof which is to facilitate the production of digital audio recordings.
4
The article included adrawing of a smallish box with a few input/output connectors. Next to the drawing was alist of further details: “FW [i.e., FireWire] based audio input device,” “[t]wo inputs, twooutputs,” “powered from FireWire,” “[s]oftware driven input gain control,” and “[l]imitercircuit to automatically prevent ‘clipping.’ ”On the following Monday, November 22, 2004, PowerPage published an articleentitled “Apple’s Asteroid Breakout Box Part II: Product Details,” also with O’Grady’sbyline. It gave additional product details plus a “[t]arget price,” “[t]arget intro date,” and
3
As with many of the concepts in this opinion, the most authoritative and currentsources of information may themselves be found on the web. Thus FireWire is describedby a well-known cooperative encyclopedia as a type of serial bus interface used toconnect external devices to a computer. (Wikipedia, The Free Encyclopedia<http://en.wikipedia.org/wiki/Firewire> (as of May 23, 2006).) A “breakout box” is adevice “in which a compound electrical connector is separated or ‘broken out’ into itscomponent connectors.” (
 Id 
. at <http://en.wikipedia.org/ wiki/Breakout_box> (as of May 23, 2006).)
4
See Wikipedia, The Free Encyclopedia <http://en.wikipedia.org/wiki/ GarageBand> (as of May 23, 2006).

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