Court Overturns Discovery Ruling Apple Won Against Bloggers

The publishers, editors and reporters at PowerPage and AppleInsider  are constitutionally protected under the California journalist shield law and other laws from having to disclose confidential sources, the Court of Appeal in California's 6th Appellate District ruled in a unanimous 69-page opinion on May 26, 2006. Every blogger and online publisher in the United States should carefully analyze this important ruling and spread the news far and wide. It’s a milestone.

Justice Conrad Rushing,  who was appointed to the bench by then Governor Gray Davis in January 2002, wrote:

In no relevant respect do they appear to differ from a reporter or editor for a traditional business-oriented periodical who solicits or otherwise comes into possession of confidential internal information about a company.

The publishers were granted a protective order regarding this Santa Clara County Court Order re Discovery and this Second Santa Clara County Court Order re Discovery, which granted Apple’s original application for preliminary and permanent injunctions “restraining the misappropriation of Apples Future Product Information.” Here’s the Supplement to Ex Parte Application

And here is a brief history of the litigation, as outlined by the Electronic Frontiers Foundation (EFF), which represented the publishers:

In December 2004, Apple filed a lawsuit in Santa Clara county against unnamed individuals who allegedly leaked information about new Apple products to several online news sites, including AppleInsider and PowerPage. The articles at issue concerned a FireWire audio interface for GarageBand, codenamed "Asteroid" or "Q7." In addition, Apple filed a separate trade secret suit against Think Secret on January 4, 2004.

Apple is seeking information from these news sites regarding the identities of the sites' sources, and has subpoenaed Nfox.com, the email service provider for PowerPage, for email messages that may identify the confidential source.

EFF, along with co-counsel Thomas Moore III and Richard Wiebe, are representing the online journalists to protect their anonymous sources.

EFF opposes Apple's discovery because the confidentiality of the media's sources and unpublished information are critical means for journalists of all stripes to acquire information and communicate it to the public. Because today's online journalists frequently depend on confidential sources to gather material, their ability to promise confidentiality is essential to maintaining the strength of independent media. Furthermore, the protections required by the First Amendment are necessary regardless of whether the journalist uses a third party for communications.

The Appeals Court agreed. It remains to be seen whether Apple will appeal to the California Supreme Court. For more on the case, see this “Apple v. Does FAQ.”