O'Grady v. Superior Court

Citation: O'Grady v. Superior Court,' 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72, 79 U.S.P.Q.2d (BNA) 1398 (2006).

Factual Background
Apple Computer, Inc. (Apple) sued a number of “Doe” defendants for misappropriation of trade secrets after they communicated information about a new Apple product that had not yet been released. O'Grady and another individual were the publishers of “online news magazine” websites on which they posted articles about the new product.

Trial Court Decision
The trial court permitted Apple to serve subpoenas on the host of one publisher's e-mail account and the other's website to produce documents relating to the identities of the defendants who had provided the information from which the articles were derived. The subpoenas further required the e-mail service hosts to produce all communications relating to Apple's new product. The trial court denied the publishers' motion for a protective order.

Appellate Court Decision
The appellate court overturned the trial court's order by granting the publisher's petition for a writ of mandate. The court held that the Stored Communications Act (SCA) prohibited disclosure of the information, with no exception for civil discovery. The court further explained that the SCA “does not authorize disclosure of the identity of the author of a stored message; it authorizes the disclosure of ‘a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications). . .‘ (18 U.S.C. § 2703(c)(1)) (italics added.)” This was not a case in which the subscriber himself had posted anonymous messages that were known; Apple sought the contents of private messages stored on the hosts' facilities. Such disclosure would have violated the SCA.

Finally, the court found that the petitioners were protected by article I, section 2, subdivision (b), of the California Constitution, the California reporter's shield law (precluding judgments of contempt), and by the privilege enjoyed by a free press to safeguard the identity of confidential sources. Applying the Mitchell factors, the court held that the circumstances favoring disclosure were outweighed by countervailing factors, particularly Apple's failure to exhaust alternative sources of the information.