NEWS MEDIA UPDATE · CALIFORNIA · Secret Courts · Sep. 19, 2005
Court orders documents unsealed in Apple trade secret case
Sep. 19, 2005 · Apple Computer Inc. released documents under court order Sept. 9 that describe Apple’s investigation into the source of an alleged trade secret leak.
A California Court of Appeal ordered the unsealing Aug. 30. The documents in the trade secret case were filed as part of Apple’s response to two journalists’ motion for protection from revealing their sources. Attorneys for the journalists sought their release, arguing that “Public access to the evidence that supports each party’s position is not only crucial to the truthfinding function of these proceedings, but also to public confidence that justice has been meted out fairly.”
The documents describe Apple’s investigation into an alleged leak about details of an Apple product that appeared on several Web sites. The journalists believe that the documents are critical to their cause to protect their sources because they show that Apple failed to conduct an exhaustive investigation.
In a typical reporter’s privilege case, if the subpoenaing party conducted an exhaustive investigation, yet still cannot identify the source of the leak, journalists may be ordered to reveal their confidential sources.
“The First Amendment requires that compelled disclosure from journalists be a last resort,” said one of the reporters’ attorneys, Kurt Opsahl of the Electronic Frontier Foundation. “Apple must first investigate its own house before seeking to disturb the freedom of the press.”
Apple last year sued 25 unnamed “John Doe” defendants, presumably Apple employees, who allegedly leaked information about “Asteroid,” one of Apple’s long-anticipated audio interface products, to several Web sites, AppleInsider.com and PowerPage.org. Seeking to identify the sources of the leak, Apple subpoenaed the email provider of one of the two journalists who reported the information, demanding emails that potentially revealed the journalists’ confidential sources.
The trial judge questioned whether the two web site authors were journalists, but found that even if they were, the reporter’s privilege should not be used to protect perpetrators of trade secret theft.
The journalists petitioned the state Court of Appeal in San Jose for protection from revealing their sources. The court must not allow Apple to eschew its responsibility to exhaustively investigate leaks, they argued, or else reporters’ newsgathering abilities will be jeopardized.
“Reporters must be able to promise confidentiality in order to obtain information on matters on which they report,” they assert in their brief. “Compelled disclosure of a reporter’s confidential sources and unpublished information causes sources to refuse to talk to reporters, resulting in a ‘chilling effect’ on the free flow of information to the public.”
A coalition of media groups, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief in the case, claiming that the identity of the confidential sources is protected by California’s reporter’s shield law and the First Amendment-based reporter’s privilege.
The journalists think that the newly released documents — declarations of senior investigators for Apple Security — help their cause to protect their sources by showing that Apple failed to conduct an exhaustive investigation. The declarations reveal that the investigators do not claim to have conducted the interviews under oath, reviewed phone records, or searched employees’ individual work computers.
The appellate court told Apple to respond to the journalists’ argument that they should be protected by a reporter’s privilege, and has not yet held hearings on the issue.
(O’Grady v. Apple Computer, Inc.; Media counsel: Kurt B. Opsahl, San Francisco, Calif.) — SB