Thank you for sharing!

Your article was successfully shared with the contacts you provided.
SAN JOSE � A Sixth District Court of Appeal panel expressed serious concerns Thursday with Apple Computer’s two-year quest to find out who leaked trade secret information to online blog sites. Apple wants to force PowerPage.org and other blogs to reveal who gave them secret data on a new digital music device named “Asteroid.” But the blog owners argue they are journalists and should be protected from revealing confidential sources. In addition to a slew of First Amendment issues raised by this case, the justices on Thursday also questioned if the “Asteroid” product is, in fact, a trade secret. “You don’t really claim this is new?” Presiding Justice Conrad Rushing asked. “This is just plugging your guitar into a computer.” Apple’s attorney George Riley countered that publishing the Asteroid diagrams on various blogs did constitute “a very serious theft.” “This wasn’t a whispered tip about a new [device],” said Riley, a partner with O’Melveny & Myers. “Companies have a right to maintain their trade secrets.” But Rushing didn’t seem impressed with Riley’s argument. “Is there any distinction between this trade secret and other trade secrets?” the justice asked. For example, “would there be a difference between the Avant case and the trade secret here?” Riley conceded that the Avant Corp. criminal trade secret case, which Rushing presided over when he was on the Santa Clara County Superior Court bench in 2001, involved a greater breach. The closely watched Avant case ended when the software maker accepted a plea agreement from the Santa Clara County district attorney’s office that forced the company and seven individuals to pay $35 million in fines and means jail time for five of the defendants for stealing computer code from a competitor, Cadence Design Systems Inc. Superior Court Judge James Kleinberg ruled in favor of Apple in March 2005, stating the company has a right to find out who leaked the Asteroid data. Kurt Opsahl, an attorney for the Electronic Frontier Foundation, which represents the online journalists � including Jason O’Grady, who owns PowerPage.org � contends Apple doesn’t have a right to force his clients to reveal their sources. Apple didn’t try hard enough to uncover who leaked the data, Opsahl argued Thursday, before the company decided to subpoena his clients’ Internet service providers to turn over e-mail records that might reveal the identities of the sources � thought to be Apple employees. If Asteroid is truly Apple’s “crown jewel” then the company should have tried harder to reveal who leaked the data, Opsahl said. “Apple is trying to do an endgame around the California Shield Law,” he said. Although the panel, which in addition to Rushing included Justice Franklin Elia and Justice Eugene Premo, didn’t spend extensive time on journalist privilege, it raised doubts about whether Apple was entitled to issue subpoenas in the first place. “All you want here is the name of, excuse me, the snitch,” Elia told Apple attorneys. “So you are saying you have the right to invade the privacy of the e-mail system and trump the First Amendment. � You don’t have that right. “You shouldn’t hire someone you think is going to be a problem,” Elia added. Riley replied he thought this could be a case of electronic espionage. The justice then asked why his client just didn’t have its employees take a lie detector test. Riley said forcing Apple employees to take a lie detector test brings up a host of other legal issues. “If you have a product you think is so hot, then maybe you should set aside your reluctance to use lie detector tests,” Elia shot back. Apple seeks damages and injunctive relief. The company has backing from several other high-tech firms that argue there is no privilege when it comes to trade secret theft. In a phone interview following Thursday’s hearing, Opsahl said he thought things went well. “The judges asked some really good questions,” Opsahl said. If the panel ultimately decides not to overturn the lower court’s ruling, Opsahl said he may appeal to the state Supreme Court. Riley didn’t return a phone call for comment. A ruling in O’Grady v. Superior Court, H028579, is expected within 90 days.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.