O’Grady v. Superior Court

Thursday, 13 April 2006

In a weblog entry a week ago, PowerPage publisher Jason O’Grady wrote an entry titled “Apple vs. Me”, regarding the “Apple v. Does” lawsuit filed a year ago, in the course of which Apple subpoenaed O’Grady’s email service provider in the hopes of identifying the source of the leak that provided O’Grady with Apple product plans for “Asteroid”, a FireWire breakout box for GarageBand.

A few of O’Grady’s comments are worth a second look. But first it’s worth reviewing the details of the case. The EFF — who are providing O’Grady with legal counsel — have a FAQ that does so nicely. One point worth noting is that O’Grady — unlike Think Secret publisher Nick Ciarelli — has not been named as a defendant, nor has he been subpoenaed personally; only his email service provider has been subpoenaed.

O’Grady starts with:

Would you ever want to be on the business end of legal action from a company with US$9 billion in cash? What about being targeted for deletion by one of most powerful multi-national corporations in the world? What if a company with US$14 billion in revenue and 14,000 employees wanted a piece of your ass?

Welcome to my world.

I don’t mean to belittle the significance of the subpoena served against O’Grady’s email provider; if it were me, and Apple (or anyone else) were subpoenaing the email records from my hosting provider, I’d fight it, too. But a subpoena served against one’s hosting provider is a far cry from being “targeted for deletion”.

After summarizing the case, O’Grady continues (boldface emphasis his):

A Santa Clara County judge decided that journalists and their sources lose constitutional protection when they publish information that a business classifies as a “trade secret.” The irony here is that a large corporation can claim that their cafeteria menu is a “trade secret” then sue your ass off if you post it on your blog.

This just isn’t true. I wrote about this ruling from Judge James P. Kleinberg a year ago, and posted a PDF version of the ruling itself.

On p. 5 of the ruling, Judge Kleinberg defined “trade secret” from the California penal code as follows:

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

1. Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and

2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Clearly, a company’s “cafeteria menu” would not meet these criteria, whereas the secret plans for an as-yet-unannounced product in development clearly would. I realize O’Grady was being at least somewhat facetious with the “cafeteria menu” example, but that paints a picture where this ruling implies that a company can rule anything and everything it wants as a “trade secret”, and that just clearly isn’t so.

Even if you think Apple’s Asteroid plans don’t meet the aforementioned legal qualifications for a trade secret — that, say, they weren’t subject to “reasonable” enough efforts to maintain their secrecy — at the very least they come close. I.e. a “cafeteria menu” they are not, and Kleinberg’s ruling in no way opens the door to a broad or loose interpretation of what constitutes a trade secret.

O’Grady also wrote:

My position on the Asteroid postings is that I didn’t steal the information and I didn’t ask for it. Someone volunteered it to me and it looked credible, so I posted it. It wasn’t marked confidential, trade secret or any such thing but it looked legit to me, so I ran it.

This is interesting, because on page 6 of his ruling, Kleinberg wrote:

For these reasons the Court has carefully reviewed the showing made by Apple to date. The posting by Mr. O’Grady contained an exact copy of a detailed drawing of “Asteroid” created by Apple. The drawing was taken from a confidential set of slides clearly labeled “Apple Need-to-Know Confidential.” In addition, technical specifications were copied verbatim from the confidential slide set and posted on the online site. These postings by Mr. O’Grady were spread over three days, November 19, 22 and 23, 2004. The Court is convinced by Apple’s presentation, including the materials produced in camera that this action has passed the thresholds necessary for discovery to proceed.

Note the discrepancy here regarding whether the documents were labeled as confidential. Note further that I’m not disputing the veracity of either party — it is entirely possible that all of this is true: that the original slides from Apple were marked “Apple Need-to-Know Confidential”, but that O’Grady’s source¹ removed, cropped, or redacted the labels before showing the slides to O’Grady.

Does this even matter? I don’t know. We might find out in a week, though, when O’Grady’s appeal is heard in California’s Superior Court on April 20.