I

I
~

.

15 4

14

11 :

10

1

5

:

6

9

16

17

12

13

20

18

21

19

26

25

24

23

22

25,

DOE

APPLE

i'

Esq.

in

on

for

Department

regularly inclusive,

a

ofO'Melveny

protective

1,

vs.

The an

unknown

motion

for

14,

order

hearing

Hon.

of

&

individual;

blocking

non-parties

INC.

COMPUTER,

Plaintiff,

Myers

SUPERIOR

Defendants

James

on

.

March

represented

P. a

subpoena

Kleinberg,

Monish

4t

COURT,

2005.

Plaintiff

Bhatia;

issued

and Does 2-

The

presiding.

)

) ) )
)

)

)

)

)

)

)

)

)

)

-1-

matter

by

ORDER

Case

Kasper

Apple.

COUNTY SANTA OF

Plaintiff

was

No.:

George

CLARA

Thomas

Jade,

AFTER

heard

BY

l-Q4-CY-032178

Apple

F

Riley, and

on

Chi

E.

Superior cj

HEARING

Jason

Computer

M!R

the

Moore

(ENDORSED)

Esq.

IAI

STATE OFCALIFORNIA

civil

O'Grady

rOR~E

1

COUnly

~

and

ill,

tJ!

discovery

20~

("Apple")

David

of

Esq.

u~ve OtliC1lrlClerk

,
Santa

.

("movants")

CIa

of

Eberhart,

D

ra

calendar

DEPUTy

came

:,
,~

j

~

1

Tomlinson

&

Zisko,

Richard

R.

Wiebe,

Esq.,

Terry

Gross,

Esq.

of

Gross

&

Belski,land

Kurt

2 3 4 5 6

Opsahl, Esq" of Electronic Frontier FoundatioI1representedthe movants,2 Although not required to issue opinions or statementsof decision when decidu1gcaseson the motion calendar, Code of Civil Procedure §632, 4 Witkin, California Procedure (4th ed, 1997) Trial, §306, p.461, the Court is doing so here becauseit believes it may be helpful to counsel and the parties to do so.

7
8 9 10
II

I. LIMITS

RULING

OF

This motion is about discovery; namely, a single subpoena served by Apple on Nfox. The order of this Court does not go beyond the questions necessaryto deten11ine this motion seeking a protective order against that single subpoena,and it cannot and should not be read or interpreted more broadly. The Court makes no finding as to the ultimate melits of Apple's

12

clai1)1s, any defenses thoseclaims.Thoseissues or to remainfor another
13 ll.BACKGROUND

THIS

day,

15

14

A.

The

16 17

Apple filed its co\uplaint on December 13,2004 alleging that unnamed individuals or entities ("Does I through 25") had leaked specific, trade secret infonnation about new Apple That infonnation
for GarageBand, and PowerPage.

18 productsto severalonline websites, including AppleInsider
19 was published by these sites and regarded a FireWire audio

Litigation

20

codenamed

c,

Asteroid"

or

"Q7."

On

December

14,

2004

Judge

interface

William

Elfving

of

this

21

granted

Apple's

application

to

take

expedited

document

discovery.

On

February

4,2005

Court

22

is not counselof recordin this case, at his requestthe Court allowed him to participatein d1c but hearing
counsel for Apple did not object. Mr. Gross is counsel of record in another, reccntly filed action by

23

I

Mr.

24

by

Apple which may raisesimilar issues. 25
26

2 On March 3,2005 Department14 of the Cow'twhich i$ assigncd civil discoverycalendar, the postedits telephonic
tentative ruling in this case, which denied moving parties' motion for a protective order. In accordance with Court's usual practice in tIlis Departmcnt, a reasoned opinion wu not included with the tentative ruling. By timely d\e

notifying

telephone;

Gross

Apple

and

the

Court

of

their

opposition

to

the

tentative

ruling

all

parties

propcrly

appeared

for

hearing

the

B.

next

morning.

-2.

the

26 15 13 10

25 23 19 17

24

21

20

6

2

22 16
9 8 1 5 4 3

7

18 14 12
protocol("IP") Product relating confidential information, Court

11

4

as

values

subpoena,

violations

disclosing

Some

even

granted

might

of

It (d) (c) (a)

The

To

(b)

All

a to

,

and

casual

great

is

and all all the all

of their

date,

all

documen~

refer apparent

movants

source.

California

and

images~

documents communications

documents

Product

Apple's

the address(es),

significance.

sources

to

student Nfox

has

the

moving

Specifically

that

brought

subpoenaed

moving

has relating

including

("Disclosing

request

law, as

of

this

received

identifying

parties not

well

that

and

partic~

On neither

the

discovery,

to

objected

to

from

issue e-mail

as

the photographs,

Apple

instant

permit

the

Nfox.com

have

the

as

from

one Person(s)"),

the

"bloggers."

or

knows)

any

identity

benefits

address(es);

no

to

has

hand motion to

federal

or

specific

limited

individual

any

right sent

the

sought

for

is

of

there

sketches)

DiscJosing

of

The

rife subpoenas

.3to

privilege

to

e~mail

seeking

any

as

including

discovery

Cali

received from or sent to any Disclosing person(s).
any

site

anonymous

the

it

with

is

or

person

is,

the

fomi

www.dictiOTlarvoreference.comdefines

Disclosing

individuals

following

messages

schematics

Nfox subpoena, no discovery is currently outstanding.

calls

complexities

a

nor

movants'

Person(s)

protective

a's

true

on

directed

or

the

into

"shield

any

entity

speech.

name(s))

California

infonnation~ that

Person(s)

question

who

grounds

claim

and relating

at

order

who

may

law."

and

N°fox,

pl-ovided

renderings

address(es),

to

supplied

restrictions.

identify

blocking

issues

shield

relating

"free

to

and,

the

November 22, November 23) and November 26, 2004. These documents include:

the

email

infonnation

speech"

and

other

law

Product;

the

of

information

the

to

internet

competing

the

bar

provider for PowerPage. Apple is seeking the identities of the source or sources for this

On

the

service

subpoena.3 Movants claim to be '~oumalists.'.4 On that basis they claim a privilege from

regarding an unreleased Apple product code-named "Asteroid" or "Q97" (the "Product"), including po stings that appeared on PowerPage.com (the "Web site") on November 19)

blog

) Although askedto makean "advisory ruling" on other,unserved subpoenas, Court decljne~ do so. the to
than Product the which, the

line diary; a per50nalcmonologicallog ofrhoughtspublishedon a webpage;also calledWeb1og, Web log."

Apple's position is the acquisition and dissemination of the alleged trade secrets are

as

the

"on

1
2

otherhand,thereis the undisputed right to protectintel1ectual propertyas expressed California in
civil and criminal law. Before analyzing and deciding these issues the Court reiterates:

3

This

is

a

discovery

issue.

The

discovery

statute

provides,

in

part,

4

(a)

Unless

otherwise

limited

by

order

of

the

court

in

accordance

with

that:

this

article,

party may obtain discoveryregardinganymatter,not privileged,that is relevantto the subject matterinvolved in the pendingaction or to the detennination any motion madein that actioJ:l, of if the Jnattereither is itself admissiblein evidence appears or reasonably calculatedto leadto the 6 discoveryof admissibleevidence.Discoverymay relateto the claim or defense the pal1y of 7 seekingdiscoveryor of any otherparty to the action. Discoverymay be obtainedof the identity andlocation of personshavingknowledgeof any discoverable matter,aswell as of the existence, S description,nature,custody,condition,andlocationof any document, tangib1e thing, or land or otherproperty.Codeof Civil Procedure 2017(a) § 9 Discover is given a broad reach in California courts; at the same time the courts have y 5
10 11
12

ftequently balanced competing interests in this regard, for example, iJ:ldividllal privacy rights.
See Witkin, Summary ofColifornia Law, (9th ed. 1988) Constitutional Law §§ 456-473, pages

13

642-660.

But,

as

discussed

infra,

the

Court

does

find

that

Apple

has

made

out

aprimafacie

any

14 15 16

that the information at issue constituted proprietary trade secretsand that it has taken adequate stepsby way ofintemal investigations to justify further, external discovery as it seekshere. See,

e.g.,

Declarations

of

Robin

Zonic,

"

4-8.

Al

Ortiz)

Jr.,

~

17

B.

Trade

18

Apple 11as maintained that the infoxmation published by the moving parties qualifies as 19
trade secrets under Califomia law. That law is found primarily in two statutes: the Unifonn

20

Secrets

(the "UTSA")

2-3.

adopted in 1985,5 and Penal Code

Trade

Secrets

Act,

Civil

Code

§§

3426

et.

21

22
23

§499c.Thosestatutes provide,in pertinentpart:
Civil Code § 3426.1. Defmitions:

***
24 2S

26

~As with other laws titled "Uniform,.. thereare differences betweenCalifornia's versionof this taw and the original version,but thosedifferencesarenot of consequence here.The UTSA supplanted California'g commonlaw of trade $ecrets derivedfrom the Restatement Torts 2d. of

seq.)

-4-

case

-

1 (b) "Misappropriation" means:
2 (1) Acquisition of a trade secret of another by a person who knows or has reason to 3 that the trade secret was acquired by improper means; know

(2) Disclosure or use of a trade secret of another without express or implied consent by a 4
5

person who;
(A) Used improper means to acquire knowledge of the trade secret; (B) At the time of disclosure or use, knew or had reason to know that or his or her

knowledge
6

of the trade secret was:
(i) Derived from or through a person who had utilized improper means to acquire

7' 8 9
10

it'

(ii) Acquired under circumstancesgiving rise to a duty to maintain its secrecy or

limit its use; or (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(C) Before a material change of his or her position, knew or had reason to that it was a trade secret and that lmowledge of it had been acquired by accident or mistake. know

11

***
(d) "Trade secret"meansinfomtation,including a formula, pattern,compilation,program,
device, method, technique, Or process)

12
13

(1) Derives
14 generally known to the public

independent
or to other

that:

economic
persons who

value, actual or potential,
can obtain economic

or

from not being
value from its

disclosure

or use; and

15

(2) Is the subjectof efforts that arereasonable underthe circumstances to

16
17

maintain its secrecy.
Penal Code § 499c:

18

***

(9)"Tradesecret" meanS information, including formula, a pattern, 19 compilation,program,device,method,technique,or process, that:
20. (A) Derives independent economic value, actual or potential, from beIng generally known to the public or to other persons who can obtain economic value from not

21

disclosure or use; and

(B) Is the subjectof efforts that arereasonable underthe circumstances to 22 maintainits secrecy, (b) Every personis guilty of theft who, with intent to depriveor withhold the connol of a
23 trade secret from its owner, or with an intent to appropriate a trade secret to his or her own use

its

24 25
26

to the use of another, does any of the following~

(1) Steals,takes,carriesaway,or useswithout authorization,a tradesecret, (2) Fraudulentlyappropriates article representing tradesecretentrusted any a to
(3) Having unlawfully obtained access to the article, without authority makes or

him

or

causes be madea copy of any article representing tradesecret. to a

her.

-5-

i

or

-

1

***
to anypresentor fonner agent,employee servantof another,a benefit as an inducement! or bribe or rewardfor conveying,deliveringor otherwisemakingavailablean article representing trade a secretownedby his or her presentor formerprincipal, employeror master!to any personnot authorized the ownerto receiveor acquirethe tradesecretand everypresentor fonner agent, by employee! servant,who solicits, accepts, or receives takesa benefit asan inducement! or bribe or rewardfor conveyulg,deliveringor otherwisemaking availablean article representing trade a secretownedby his or her present fonner principal, employeror master,to anypersonnot or authorized the ownerto receiveor acquirethe tradesecret,shall be punishedby imprisonment by in the stateprison, or in a countyjail not exceeding year,or by a fine not exceedingfive one thousand dollars ($ 5.000),or by both that fine andimprisonment. (d) In a prosecution a violation of this section,it shall be no defense for that the person returnedor intendedto retum the arocle. Thesestatutes reflect this state!sstrongcommitmentto the protectionof proprietary
(C) Every person who promises, offers or gives, or conspires to promise or offer to give,

2 3 4 5 6 7 8 9 10

business information. SeeIntegral Dev. Corp. v. Weissenbach (2002) 99 Ca!. App. 4th576, 11 12
13 rights.
14
that trade secret laws apply to everyone regardless of their status, title or chosen profession. The As discussed infra, the United States and Califomja Supreme Courts have underscored

Magnec()mp Corp. v. AtheneCo. (1989)209 Cal. App. 3d 526. The statutes also supportthe compellinginterestof disclosure which may, in the propercivil case,outweighFirst Amendment

15

California Legislature has not carved out any exception to these statutes for journalists, 16

bloggers

or anyone else. 17 For these reasonsthe Court has carefully reviewed the showing made by Apple to date. 18
The posting by Mr. O'Grady contained an exact copy of a detailed drawing of 19
by Apple. The drawing was taken from a confidential set of slides clearly labeled cc Apple

1\

Asteroid"
Need-

created

20 to-Know Confidential.!'

In addition~

technical

specifications

were

copied

verbatim

from

the

21

confidential slide set and posted on the online site. These postings by Mr. O'Grady were spread 22

over threedays,November19,22 and23,2004. The Court is convincedby Apple's 23 24 25 26 presentation, including the materialsproducedin camerathat this action haspassed the thresholds necessary discoveryto proceed. for

.6.

.
1 C. Joumalists and privilege 2 Much ofmovants'

papers

and

argument

is

a

recitation

of

the

obvious:

the

telms

3

importance

of

the

First

Amendment

and

the

value

of

free

speech

which

this

Court

4

This

principle

was

explored

in

Ford

V$.

Lane,

(E.D,

Mich.,

1999)

67

F.

Supp.

2d

745,

rccognizes.

5

"The First Amendment

protects

freedom

of speech and freedom

of the press by

6

providing,

'Congress

shall

make

no

law.

.

.

abridging

the

freedom

of

speecb"

OT

of

the

751:

press.

and

.

1 8
9 prevent

'The First Amendment applies to speechon the Internet. Rel1O American Civil Libertie.)' v. Union, (1997) 521 U.S. 844. The primary purpose of the guaranteeof freedom of the press is to
prior restraints on publication. Near v. Minnesota, (1931) 283 U.S. 697. Even a

10

temporary restraint on pure speech is improper absent the !'most compelling

circumstances,"

In

11 theMatter of ProvidenceJournal Co., (1st Cir. 1986)820 F.2d 1342,1351.The First
12 Amendment applies to the States via the Fourteenth Amendment. Near at 707",

13
14 Pentagon

The broad parameters of the prior restraint doctrine were further explained in the
Papers case, New York Times Co. v. Um'tedStates, (1971) 403 U.S. 713. There, the

15

federal

government

sought

to

enjoin

The

New

York

Times

and

The

Washington

Post

16

publishing

a

classified

study

on

U.S.

policy-making

in

Vietnam.

The

Vietnam

conflict

from

17 ongoing,andthe govenunentarguedthat the publicationof the classifiedinformation might 18 damage national interest.The Court observed the that,because prior restrainton speech any is 19 presumptivelyinvalid underthe First Amendment, government the bore a heavy burdenof 20 showingajustification for the restraint.Finding that the government not met its burden,the had 21 Court deniedthe injunction.Id. at 714. 22 But the pendingmotion is not for injunctive relief againstanyoneand the Pentagon

23 Papers caseand similar authoritiesarenot on point. 24
25 analysis

First, the issueof prior restraintis not beforethe Court. The California Supreme Court's
in DVD Copy Control Association v. Bunner, (2003) 31 Cal. 4th 864 is of particular

26

value.

In

that

case,

in

which

defendant

was

represented

by

some

of

the

same

.7.

counsel

was

.

Yc",--4

22 3 2

21 19

20

18

17

16

15

14

13

12

11

10

1

5

26 8

2S

9

6

7
.

23
Id., prohibit Function: j mass 1 Function: jour.nal-ist 'Journalist" Vopper, protection during Branzburg sourceS Supreme injunctive create debate

24
OUr-DB a : at a audience person 881. a I argument. is Movants Similarly do legitimate courts (2001) noun nOun frustrated

taste

of

facts

or

public;

or

representing

Court

description

relief

of not

The

-Ism
v. engaged has

interest

the

Hayes,

have

from

532

allowed

Court

become

-

contend

privilege

the

which

public

by

movants,

of in

U. a

incidentally

(1972)

claim

events license

journaliSJn;

went

offering

S.

the

more necessarily

they interest

514,532

against

2 : a personwho keeps3. journal
of on

without

injunction

408

to

L~rivilege"

complicated

are

to

property

"The mere fact that DVD CCA's

e$pecially violate

U.S. note

enjoining

trade

in

journalists.

an

revealing

(indeed,

their

raises

attempt

665,691

that

to

secrets

criminallaws

6 The Merriam-Wcbstcr online dictionary states:
protection

:

issue. disclosure."

is

a "It

issues

speech

writer as

at the overstated

their

interpretation

They

is

the may

Counsel

parties something

-8or

variety

sources

of

in

to

editor

have

make

prior

order

the Supreme Court observed that

such

Id.,

trade

had

in

for

for

some

c ofinfonnation.

of this

this

restraint at

:

as secrets." done

of

to

a

the

writing

media 8840

news protect

claim

Penal

context.

a

link

moving

mystery

discovery,

Ultimately,

roedi1W1

not

designcd

has to

because

Code

[do,

a

a

Reporters present

legitimate

expanded.6

public

parties

at

as

b

Defining

§499c.

to :

883.

to

Id.

a

they

appeal

in how

writer

here

issue

admitted at

the

And,

and

Bartnicki property

seek

520);

free

But

to who

what ~

context

does

CWTent

their the

furthcr,

the

even

and

aims

this

is

"[T]he First Amendment does not

not

right,"

a v.

open

pQpular

at

of

if

a

1 a ; the collection and editing of news for presentation through the media b : thc public press c : an academic study concerned with the collection and editing of news or the managemcnt of a news medium
the

2 a : writing designedfQ{publicationin a newspaper magazine : writing characterized a direct presentation Qr b by

~

~

,

1 movantsarejournalists,this is not the equivaleDt of a freepass.Thejournalist's privilege is not
2
3

absolute. For example, joun1a)ists cannot refuse to disclose information when it relates to a
crime. As the Supreme Court in Bran.zburg stated:

4 5
6

"The preference for anonymity of those confidential informants involved in actual criroj.naJconductis presumably productof their desireto escape a criminal prosecution,andthis
preference, while understandable, is hardly deserving of constitutional protection." 408 U.S. at

7

691.

8

D.

The

Mitchell

9

The

balancing

of

standard

interests

between

discovery

and

privilege

was

addressed

by

10
11

California Supreme Court in Mitchell v. Superior Court, (1984) 37 Cal. 3d 268,276. In that case,
at pages 279-84, the following five-part test was articulated for weigl1ing whether discovery

12 13 14 15 16
17

should be pennitted over an assertion of the Federal privilege: (I) "Nature of the litigation andwhetherthe reporteris a party:" Although not yet named as defendants, is certainlypossible"journalists" may be; it certainly Mr. O'Grady's declaration suggeststhis possibility. (2) "Does discovery sought go to the heart of plaintiffs claim~"
Without tbjs discovery Apple's case will be crippled, since it will not know the

18

defendants

upon whom

it should serve process.

19 20 21 22

(3)

"Have

other

sources

of

information

been

The moving parties maintain Apple should have done more investigating up to this point, including the unusual step of noticing the depositions of its own employees. But the Court is convinced) upon reviewing Apple's public and in camera materials that a thorough investigation

23 hasbeendoneand all alternativemeans havebeenexhausted.
24

exhausted?"

the

'1 !ii

;,

(4) "What is the public good served protectingthe misappropriation tradesecrets?" by of

2S 26

.9. j ,~_.,~...,~~4'"' II ,,

1. Movants

did not presenta persuasive reason "public good" andnever answered of the
as to why there was a true public bel1efit from disclosureSee Mitchell v.

2

Court's

3

Superior

inquiry

Court

at

283

and

DVD

Copy

Control

Association

v.

Bunner

at

4

(5) [Paraphrased] In the context of a detamation

case~ should the Cou11require the

5

plaintiff

to

make

aprimajacie

showing

of

6 7 8
9

This is not a defamation case, and movants do not believe this factor is pertinent. In any event, the Court finds that Apple has made aprimafacie caseof misappropriation and this is yet another reason to allow discovery.
E. The Shjeld Law

10 11 12
13

Easily overstated in its power, "[t]he description 'shield law' conjures up visions of broad protection and sweeping privilege. The California shield law, however, is unique in that it affords only limited protection. It does not create a privilege for newspeople, rather it provides
an
and jmmunity from being adjudged in contempt. This rather basic distinction has been misstated apparently misunderstood by members of the news media and our courts as well."

14

falsity?

883-85-

KSDO

15

Superior Court, (1982) 136 Cal. App. 3de 375,379-80.

16 17 terms:
18

California EvidenceCode §§ 1070(a) (b). citedby movants,arequite specific in their and

(a)

A

publisher,

editor,

reporter,

or

other

person

connected

with

or

employed

upon

newspaper, magazine, otherperiodicalpublication,or by a pressassociation wire service, or or 19 or any personwho hasbeenso connected employed,cannotbe adjudgedin contemptby a or 20 judicial, legislative,administrative body, or any otherbody having the power to issuesubpoenas, for refusingto disclose,in any proceeding definedin Section901,the sourceof any as 21 infonnation procuredwhile so connected employedfor publication in a newspaper, or magazine or otherperiodical publication,or for refusingto discloseanyunpublishedinfonnation obtained 22 or preparedin gathering, receivingor processing infom1ation communicationto the public. of for 23
24 a radio

(b) Nor cana radioor television news reporter otherperson or connected or employed with by
or television station, or any person who has been so connected or employed. be

adjudged in contempt for refusing to disclose the source of any information procured while so
25 connected or employed for news or news commentary puxposes on radio or television, or

so

refusing to disclose any unpublished information obtained or prepared in gathering~receiving or

26 processing infonIlation for communication to the public. of

,10"""'-""",,"",,'" . ' i

for

a

v.

I
.'

,

26

24

23

22 19 18 16

21 13 11

20

12

to

17

2

4

3

14
9 8 7 6 5 1

15

25
ill.
same containing definitions. are (1974) including: Branzburg, Copy true,

rears

8

7

fundamental

counsel.
and Control 418 The The The Finally, In At The The Based the is this the the U.S. As psychotherapist-patient legislative marital attorney-client executive 408 not infonnation reason: hearing Association on case, same such it transfonned U.S. 683 that is communications accepting worth AND information it there

An

The

experienced

ago.

undisputed

Carpenter

facts

Wall

v.

are

Street

United

CONCLUSION
691. privilege

language

that

the

is privilege,

Journal

stolen divulged

8

M(.

movants

States,

DISPOSITION

noting

v-

is

privilege,

by

Bunner,

no

O'Grady

for

and

property, of

reporter

license

its

(1987)

on

(1972)

that

present

falls

the

fom admitted

the

privilege,

its

privilege,

Evidence at

took

President

other

484

was

facts

hard squarely

conferred

874-88;

Gravel

or

just

purposes

die

U.S.

indicted

who

privileges

drive

presented,

to

infonnation

as

Evidence

19 Evidence

such

Code

.11receives any under

of

v. Bartnicki,

on

and (or

United

the

that

physical limitations.

anyone

convicted not)

§

United

have

the

956

and

it

Apple's

Code

it.9

Code

is

States,

wouJd UTSA

turned

v.

been

far

Therefore,

to

item,

Vopper,

for

§

States,

§ violate

from

allegations

1018.

around

981 408

similarly

trading be.

and

The physician-patient privilege, EvidenceCode§§ 997,999

such

clear

The

United U.S.

Penal

(2001)

valid

and

on the

as

information

that

inside

put

606

circumscribed,

a

Court

about

Code

States

criminal

laptop 532

it

Mr.

on

information

U.S.

used trade

the §499c

O'Grady

v.

computer

PowerPage

Nixon,

laws.

remains

514,

the

secrets

ajoumalist, reporter,blogger,or anythingelseneednot be decidedat this juncture for this

twenty

qualifies for relief from the subpoena the groundsadvanced.7 on Whetherhe fits the definition of

with essentiallyno addedvalue. As notedat the outset,the Court declinesto make"advisory rulings" with respect to Monish Bhatia,KasperJade,PowerPage, Applelmider asmovantsrequest. or
DVD

For example,docwnentss~t by a client to his/herlawyer do not become"privileged" simply by bcing sentto
the

site

!"}""

. 1 2 3 4 5 6
7 Apple and

chaI"gedword "fence" to describe parties who acted as go-betweensbetween the generator of the secret property and the recipients of it. Although specifically asked of colillsel for movants, the Court did not hear rebuttal to the analogy at the hearing. The bottom line is there is no exception or exemption in either the UrSA or the PenalCodefor journalists- howeverdefined- or anyone else. Much of the movants' papers and their oral argument stressedthe public's interest in
its products. Movants miss the point. Of course the public is interested in Apple. It is

8
9

a company which has achieved iconic status. One need no further proof of this point than to
review the personal history of movant O'Grady who, according to his own declaration "has been

10

working

with

Macintosh

computers

since

1985

...

co-founded

the

first

dedicated

Apple

11

Book User Group"..

in the United States.". has contributed articles to MacWEEK,

MacWorld,

12

MacAddict, MacPower(Japan) ...[and] written chapters for The MacinJosh Bible.

,.Movant's

13 OpeningBrief at 4: 8-20. Mr. O'Grady is far from alone:the public hashad, and continuesto 14 havea profound interestin gossipaboutApple. Thereforeit is not swprisiDgthat hundredsof 15 thousands "hits" on a websiteaboutApple haveandwill happen. an interested of But public is 16 not the sameasthepublic interest.
1.7 At the hearing the Court specifically asked what public interest was served by publishing

18

private,

proprietary

product

information

that

was

ostensibly

stolen

and

turned

over

to

those

Power

19

no

business

reason

for

getting

it.

Movants'

response

was

to

again

reiterate

the

20 2\
22

interest of the public in Apple, rather than justifying why citizens have a right to know the private and secret information of a business entity, be it Apple, H-P, a law firm, a newspaper,
Coca-Cola, a restaurant, or anyone else. Unlike the whistleblower who discloses a health, safety,

23

or

welfare

hazard

affecting

all,

or

the

government

employee

who

reveals

mismanagement

self-evident

24 25 26

worse by our public officials, the movants are doing nothing more than feeding the public's insatiable desire for information.

-12-

..I~

or

with

~

1

Indeed, a careful review ofmovants' opening and reply papers and the hearing transcript

2
3

revealsthat movantsneveradequately dealtwith the issueof the llltersectionof tradesecretsand
journalistic privilege. Movants' opening brief does not mention the UTSA or Penal Code § 499c.

I

4

The

reply

brief

states,

"This

motion

does

not

implicate

the

issue

of

whether

Apple's

trade

5

was

protected

speech;

..

."

Movants'

Opening

Brief,

at

7:

4-5.

When

skilled

lawyers

6 7
8

ignore an essential issuethat the Court specificallyinquiresabout,it sendsa message they have little to sayon the subject.And if, asmovantsargue,tradesecrets alwaysat risk - a "sieve," are
at
Penal Code? quoting Kewanee Oil v. Bicron, (1974) 416 U.S. 489~9010 -how does one explain the

9

explicit

statutory

language

of

the

UTSA

10

Let therebe no doubt:nothing in this orderis meantto precludethe exchange opinions of
and ideas, speculation about the future, or analysesof known facts. The rumor and opinion mills may continue to run at full speed. What underlies this decision is the publishing of inforr:nation
that at this early stage of the litigation fits squarely within the definition of trade secret. The right

I

11 12
13

I

14

to

keep

and

maintain

proprietary

information

and

as

such

is

a

right

which

the

California

15
16

and courts have long affinned and which is essential to the future oftecbnology and innovation
generally. The Court sees no reason to abandon that right even ifit were to assume, arguendo,

17

movants

are

"journalists"

as

they

claim

they

18
19 This order

For all of the above reasons the Court denies the movants' request for a protective order.
is stayed for seven cowt days to allow the parties, or any of them, to exercise their

20

appellate

21

IT

rights.

IS

SO

22

Dated:

March

ORDERED

LL

23 24 2S 26
10 Citing Kewaneeis interestingbecause that casethe United StatesSupreme in CO\n1 affinned the co-equalstatusof
trade secrets with patents as mcthodologieg for protecting proprietary information.

2005

are.

Honorable JamesP. Kleinberg Judge of the Superior Court

-13-

legislature

largely

secret