Electronic Discovery Law

O'Grady v. Superior Court, 2006 WL 1452685 (Cal. Ct. App. May 26, 2006)

Apple Computer, Inc. (Apple) 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.

On appeal, the Sixth Appellate District of the California Court of Appeal held that this was error because (1) the subpoena to the email service provider could not 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with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter's shield (Cal.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 was also barred by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court, 37 Cal.3d 268 (1984)). Accordingly, the appellate court issued a writ of mandate directing the trial court to grant the motion for a protective order.