O'Grady et al. v. Superior Court (Apple)

Filed 5/26/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

                      Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple's secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers.  In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers.  The publishers moved for a protective order to prevent any such discovery.  The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret.  We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18  U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter's shield (Cal.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 the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)).  Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.

Factual and Procedural Background

                      Petitioner Jason O'Grady declared below that he owns and operates â€