Saturday, August 2, 2008

Case dismissed

By a stipulated order filed on Wednesday, July 30, 2008, the complaint was dismissed in Eclipse Aviation Corporation v. John Doe et al., No. D-202-CV-2008-02624, New Mexico Second Judicial District Court.

I didn't know this when I wrote my last article, on Thursday morning, July 31. There's often a delay of one to three business days before things show up on the New Mexico case information website, and the following item was just added on Friday evening: "7/30/2008 FILING STIPULATED ORDER OF DISMISSAL WITHOUT PREJUDICE". I don't yet have a copy of the order, but see the current docket listing (and cf. the docket listing as of July 31).

On Thursday, with the underlying case having been closed, the subpoena in California had become invalid, and the motion to quash it was moot. Accordingly, the motion was taken off the hearing calendar, thus bringing the California proceeding to a close as well (and also mooting my pending request for permission to record the hearing). See the tentative ruling that was posted on Thursday afternoon for a written record of the matter being taken off-calendar. A slightly more definitive (but probably no more informative) minute order should be filed next week.

Because no answer to the complaint had been filed, I believe Eclipse could have dismissed its complaint by simply filing a notice of dismissal, per Rule 1-041(A)(1)(a) NMRA. The fact that the parties bothered with a stipulated dismissal order may indicate that the order contains some additional provisions beyond a simple dismissal without prejudice.

Sometime in the next couple weeks, I expect to obtain and post here most of the court documents that I do not yet have, including the original complaint (filed March 18), Eclipse's and the Does' supplemental papers on the motion to quash (filed July 21 and July 25), the Does' motion to dismiss (filed July 22), and the stipulated dismissal order (filed July 30).

Thursday, July 31, 2008

June 6 hearing notes and transcript excerpts

Below are some notes — including several excerpts from the official transcript — about the June 6, 2008 hearing before Judge Manoukian on the John Does' motion to quash the subpoena that was issued to Google in Eclipse Aviation Corp. v. John Doe, et al., No. 1-08-CV-110380 (Cal. Superior Ct., Santa Clara Cty.).

First, however, I will discuss why this post is not what I had hoped it would be.

Table of Contents:

The court's refusal to allow a transcript or recording to be published

I normally write posts here in the following form:

  1. Here are some source documents.
  2. Here are some notes about them, with some references to other sources.

The idea is that the reader might find my notes to be a useful supplement to — but absolutely not a replacement for — reading the source documents himself.

I would like to write this post in a similar form, namely: "Here is the official transcript of the hearing, and here are some notes", or, "Here is an audio recording of the hearing, and here are some notes". Most courts, including California's appellate courts and all federal courts (both trial and appellate) make it easy to do one or the other. That is, for any hearings that were open to the public, the courts make either transcripts or audio recordings available, and any member of the public can simply purchase one and post it on the internet.

In California trial courts, however, there is generally no easy way to publish a complete record of what was said at an open hearing. I tried asking for permission to make my own sound recording and publish it. (I actually made two distinct types of recording requests; see my June 4 letter for details.) Judge Manoukian denied my requests. His only comment was this:

The Reporter has copies of the transcript that can be obtained.

(transcript at 2:21-22). That statement is certainly correct, and I have now obtained a copy of the official transcript from the court reporter. However, for the reasons I had discussed in my June 4 letter to the Court, I am not able to post it here, and Judge Manoukian's rulings have left me with no legal way to provide a complete and spin-free account of what was said at the hearing.

It has long been recognized that transcripts do not merit copyright protection. See Lipman v. Commonwealth of Massachusetts, 475 F.2d 565 (1st Cir. 1973) ("since a transcript is a verbatim recording &hellip there can be no originality in the reporter's product") and Nimmer on Copyright §5.06 ("insofar as the transcript is an accurate statement of the testimony of others, the court reporter can claim no originality in the work"). Nevertheless, transcripts from proceedings in California courts are given a sort of pseudo-copyright protection:

Any court, party, or person who has purchased a transcript may, without paying a further fee to the reporter, reproduce a copy or portion thereof as an exhibit pursuant to court order or rule, or for internal use, but shall not otherwise provide or sell a copy or copies to any other party or person.

(Cal. Gov. Code §69954(d), Stats. 1993 Ch. 1016 §2). I consider this statute to be both: (1) bad policy; and (2) constitutionally questionable, at best. However, I haven't yet had the gumption to either: (1) bring about the repeal of the statute by successfully lobbying the legislature or getting a ballot initiative passed; or (2) (the less unlikely option) ask a court to strike down the law.

Fortunately, in many instances it is still possible to publish a transcript if the case has been appealed. As I discussed at the end of my May 29, 2008 article (which includes transcripts of the hearings before Judge Manoukian in H.B. Fuller v. Doe and Krinsky v. Doe), the law only prohibits publishing the transcript if you "purchased" your copy, and in cases that have been appealed, you can usually obtain a copy of the transcript without purchasing anything.

Until the Eclipse case is appealed (or, until the End of Days, if no appeal is ever filed), anyone who wants to read the transcript of the June 6 hearing will probably have to shell out $16.20 and buy his own copy. Because I was the first person to order a transcript, I had to pay the higher price of $81.00, but I don't consider that a problem. The problem is the unlimited $16.20/copy "royalty" that makes it impossible to post the transcript to a public website. (For pricing details, see the footnotes in my July 25 letter)

Judge Manoukian's court reporter, Georgeann Wiles, is particularly vigilant about transcript piracy: she's the only reporter I've encountered who puts a notice at the top of every single page of her transcripts that says, "Copying Prohibited Pursuant to GC 69954(d)". See this short excerpt (containing just the pages with the judge's opening and closing remarks, which is about as much as I dare reproduce in full).

California's appellate courts allow anyone to purchase and publish audio recordings of the courts' public proceedings. You can find a recording of the arguments in the Krinsky v. Doe appeal at the end of my May 29, 2008 article. California's trial courts, however, normally invest the court reporter with a monopoly over the only verbatim record of a proceeding.

Many of the proceedings in trial courts, in contrast to appellate courts, include the testimony of witnesses. I might see the point of disallowing audio recordings, in some instances, for the protection of witnesses (even when the courtroom is open to anyone who wants to attend and listen in person). However, for open motion hearings like this one, where the only sounds heard are the voices of the attorneys and judges, just like in appellate court proceedings, it seems to me that the California Superior Court should routinely allow audio recordings to be published, just like the California Court of Appeal does.

For the upcoming hearing on Friday, August 1, I again made two audio recording requests. The first was for permission, as a news media agency (as that term is broadly defined in CRC 1.150(b)(2)), to make an audio recording that I would be free to publish, per CRC 1.150(e) (see Media Request dated July 25, 2008). Judge Manoukian has already denied that request, without comment, in a written order entered on July 29. I also made a non-news-media request (a "Personal Recording" request), per CRC 1.150(d), for permission to make a "personal notes" audio recording (see my letter dated July 25). I could not publish such an audio recording, but I could at least use it to create and publish an unofficial written transcript. As I noted in the letter, both Eclipse and the John Does have explicitly declined to object to this Personal Recording request, and I thank them for their cooperation. It remains to be seen, however, whether Judge Manoukian will grant the request.

The motion papers

The starting point of the hearing was that the judge and all the attorneys had read the submitted papers on the motion. The main papers were the Does' 6-page supporting memorandum, Eclipse's 13-page opposition memorandum, and the Declaration of Vern Raburn. Also of interest was the commission from New Mexico Judge Linda M. Vanzi, which had been filed in the California court as an exhibit to Eclipse's initial filing here back on April 14.

For some notes on these documents, see my previous article.

The hearing itself

The speakers at the hearing were Judge Socrates Manoukian; attorneys David Thuma (from New Mexico) and Angela Storey (from California) for Plaintiff Eclipse Aviation Corp.; and attorney Norman Malinski for the John Does. (I, Al Petrofsky, also spoke for about two sentences at the start of the hearing, regarding my request for permission to make an audio recording.)

Opening comments about Krinsky

Judge Manoukian started by making several points about the Krinsky case, in which the appeals court reversed Judge Manoukian's denial of another John Doe's motion to quash a subpoena:

MR. PETROFSKY [sic in official transcript; should be "THE COURT"]: ... Okay. I have a few questions on this. Extensive reference has been made to the Krinsky matter and to the H.B. Fuller matter, both of which I have intimate knowledge. And let me point out, I also am intimately familiar with the O'Grady case, which was Judge Kleinberg's case. I also want to point out four things that the Krinsky case did not mention. A couple of them were addressed in my written order, a couple. I just assumed was common knowledge or were common knowledge.

First of all, the Krinsky case did not mention that I specifically found that there was some economic damage to Dr. Krinsky because the e-mails or postings, rather, led to a devaluation of the publicly traded stock in her company by two-thirds in a period about a month or two, drove down her stock price 60, 67, 68 percent.

Secondly, Krinsky did not mention that the commission was signed by a judge in Florida, and just as H.B. Fuller was, and as was signed in this case, the commission was signed by Judge Linda Vanzi, V-a-n-z-i, of the Second Judicial District in New Mexico.

Thirdly, the Krinsky case did not discuss the well-accepted doctrine that relevancy of the subject matter does not depend on a legally sufficient pleading, nor is it restricted to the issues formally raised in the pleadings, and that relevancy of the subject matter is determined by the potential as well as the actual issues in the case. That goes back to at least 1908 in California.

And finally, the epithets in the Krinsky case include the term "cockroach." Justice Rushing -- Presiding Justice Rushing has a class, teaches a class in law and literature, which I've taken twice, and one of the discussions involves John Joseph Kafka, The Metamorphosis, which is the book where Gregor Samsa awakes one morning and he's on his back as a cockroach. And, actually, the term cockroach was not probably not what Kafka intended because of an inability to precisely translate German into English. What he probably meant was something of an utterly monstrous vermin beyond contempt. That's irrelevant for this purpose. But that was something I noted.

(transcript at 2:23-4:5)

You can find several documents from the Fuller and Krinsky cases in my May 29 article.

Judge Manoukian expressed his frustration with the Krinsky decision several more times, but he made it clear that he would follow the precedent anyway:

... if I follow Krinsky ... [w]hich I have every intention of doing, by the way.

(transcript at 17:2-5)

Like I said, they left out a lot of stuff that I thought about and came to conclusions about, and they just didn't talk about it. But who am I? I mean, they've got 95 years of collective judicial experience. I've only got 15.

(transcript at 21:6-10)

Free speech in general

Early in the hearing, Judge Manoukian also expressed some thoughts on free speech in general:

THE COURT: Those people want to be able to walk down the street and not be bothered. And I suppose if you're a public official, you take some of that. And if you're in a business, public, private business of which there's some controversy, you take part in that, too. I mean, the law on that is clear. But what I'm always confused about is this belief that, you know, it's a good thing to be vulgar, to be insulting, to be half-true, to be outright false. That's a good thing. Krinsky says, well, obviously nobody really believed that Dr. Krinsky and her colleagues were cockroaches. That's true hyperbole.

MR. MALINSKI: Correct.

THE COURT: But what got overlooked there was that a lot of people did believe it because the publicly traded stock price decreased by about 68 percent in a one- or two-month period, and if you're short-selling stock, that's a pretty good gimmick because it's a lot easier to gin down the price of stock than to gin it up because you pretend like you have inside information and knowledge about something where you really don't.

(transcript at 9:6-25)

THE COURT: I believe you. I think that ignorance is a tool of suppression. And that's why it was a public offense to prevent a black person from learning to read. Because it was an instrument of suppression. If they couldn't read, they couldn't read passes and read maps to get out of the South or whatever, couldn't read signposts and so forth. I'd buy into that a hundred percent. What I don't buy in to is that somebody can use that to slander, to commit criminal acts, to take advantage of somebody's frailty so that a 15-year-old girl commits suicide because of a belief that she reads on an Internet posting put on by somebody else's mother meant as a joke. I think then that gets pretty serious, and it gets serious when computer crimes are committed to commit bank robberies, to -- so on and so forth. Derail trains. It was just a joke. We didn't mean that. It's a game. It's their problem for letting us -- not making their computers hack-proof. I -- I have some problems with that, but I believe in free speech. I think people have a right to say whatever they want as long as it's not defamatory, criminal, then, you know, then we need to talk. And that's what we're doing here.

(transcript at 11:2-22)

I believe the example of a "15-year-old girl [who] commits suicide because of a belief that [results from something] she reads on an Internet posting put on by somebody else's mother meant as a joke" was a reference to the allegations in U.S.A. v. Lori Drew, No. 2:08-cr-582 (C.D. Cal., Indictment filed May 15, 2008).

Absence of Complaint

The biggest bone of contention at the hearing was Eclipse's failure to file a copy of its complaint in California, or even to provide a copy of it to the Does' attorney. The Complaint was only on file in New Mexico, where it was under seal. As I wrote last month, "In every subpoena case cited by Eclipse, a copy of the underlying complaint had been filed in the court of the judge who had to rule on whether or not to quash the subpoena, rather than just having been filed in some court in a completely different state. Just as importantly, the complaint was also available to the other parties, which was necessary for them to be able to adequately brief the issues for the judge. See Highfields Capital, Sony Music, Apple Computer, H.B. Fuller, Krinsky, Rancho Publications, and Immunomedics (all as cited in the Table of Authorities in Eclipse's brief)".

Eclipse argued that the lack of a copy of the Complaint was a trivial matter, because the Complaint contained nothing of any interest that had not already been disclosed:

MS. STOREY: It's a three- or four-page complaint that says that the confidentiality agreement, it was broken, it's being posted on the blogs. It's exactly what it says in the docket. It's a breach of contract and breach of non-disclosure agreement.

(transcript at 18:6-10)

MR. THUMA: There's nothing in the Complaint that would cause the least amount of surprise. Everything, the gravamen was in our opposition and in Mr. Rayburn's affidavit.

(transcript at 27:9-12)

Confusingly, Eclipse also argued that the Complaint, despite being devoid of even "the least amount of surprise", should not become available to the public, nor even to the John Does. The Does' attorney (Malinski) had no objection to either of those conditions, as long as the Complaint was provided to him. Accordingly, Judge Manoukian ordered Eclipse to produce the Complaint to Malinski on an attorneys'-eyes-only basis:

THE COURT [speaking to Thuma]: You know, he's [Malinski's] a lawyer. He's got ethical obligations. And we have attorneys'-eyes-only things all the time, and I would tend to be a little suspicious about a judge ruling against my clients on something I haven't seen. You know, show him and, you know, swear him to secrecy.

(transcript at 13:11-16)

MR. THUMA: Your Honor, the reason we filed it under seal in the first place, we were hoping to get out some discovery before the discovery kind of disappeared. And we were hoping to get the --

THE COURT: That may have happened by now anyway.

MR. THUMA: It may have. I agree with you that today it's much less important and maybe unimportant to have the Complaint under seal. That's why it was under seal, and things happened so quickly that we haven't unsealed it. But that's why we filed it under seal. We were trying to get some evidence to figure out who these people were before the evidence disappeared, and we thought, and Judge Vanzi agreed with us, that it made sense to seal the Complaint in the effort to do that.

And on the other hand, when we filed our response, we had tried, and I think successfully, to set out everything of substance that is alleged in the Complaint so that you and the unreleased posters would know the gravamen of what we're complaining about. So we give them a copy of the INDA. We said it was breached. We sued for breach of the INDA, and that's all there is in the Complaint. And I'd be happy to share it with you. I guess I've got some duties, because it's under seal to make sure it just doesn't get out. But the Complaint is -- it only says breach of INDA and injunctive relief for breach of INDA.

(transcript at 13:19-14:15)

THE COURT: So why not show him now?

MR. THUMA: I'd be happy to as long as he would agree not to post it on the Eclipse blog within four hours after he gets it.

(transcript at 14:19-22)

THE COURT: Show him right now.

MR. THUMA: All right.

(transcript at 14:26-14:27)

THE COURT: And you're ordered not to release that or its contents to your clients.

MR. MALINSKI: I will deliver it back.

THE COURT: Don't tell him what you're reading, that's what I'm getting at. Don't send an e-mail saying what you got.

MR. MALINSKI: I will not expose that.

(transcript at 15:10-16)

I haven't yet seen Judge Vanzi's sealing order, but I'll be surprised if it actually imposed any "dut[y]" on Thuma "to make sure [the Complaint] just doesn't get out". The sealing order was entered solely at Eclipse's request, and presumably solely for Eclipse's protection. I would expect the order simply instructed the clerk of the court not to make the court's copy of the Complaint available to the public, and the order did not impose any duties at all on Eclipse.

After some musing, Judge Manoukian decided that Eclipse had not yet made a sufficient showing, under the Krinsky standard, that there was a prima facie case:

THE COURT: I don't have a complaint saying what it is you're suing for. And according to Krinsky -- and I can disagree with this -- but according to Krinsky, you need a legally sufficient complaint. Now, I'm going to ask Mr. Malinski if the fact that there's a commission by a New Mexico judge if that's not entitled to full faith and credit, as I did in the Fuller case. You know, I mean, the judge says -- issued a commission and allowed you to get this information. I'd like to think that the judge thought that under New Mexico law there was a good reason for doing so, but according to Krinsky case, there has to be a legally sufficient complaint. They talk about prima facie evidence and so forth. Prima facie showing. But let me get the exact language. Well, yeah, the Point 6 of the Krinsky decision, others talk about whether there's a viable -- you need a viable cause of action in order to get these types of records. And I don't know what happened in New Mexico, if this was a -- there was a complaint filed which I haven't seen. I don't know if there were any motions to challenge the sufficiency of the demurrer. They may go into what is -- the fact that notice pleadings -- amount of pleadings can vary from state to state. And you know what I didn't get into in the Krinsky case was a full blown conflicts of law analysis. But, you know, it seemed to me that a judge in New Mexico thought that the records were something that ought to be produced under New Mexico law, and I think I have to go beyond that, if I follow Krinsky.

(transcript at 16:3-17:2)

MS. STOREY: We have made a prima facie case of breach of contract in regards to the non-disclosure agreement.

THE COURT: You may have, but I haven't seen it, and I haven't heard Mr. Malinski say he had an opportunity to squawk about it, since he just saw the Complaint right now.

(transcript at 28:26-29:3)

Lack of reply to Eclipse's evidence

Another big question at the hearing was whether or not it was too late for the Does to challenge Eclipse's evidence. Before the hearing, Eclipse had submitted evidence on May 23. The main item was the Raburn Declaration, which included copies of several posts that the Does had made to and its predecessor The Does had an opportunity to file a reply on or before May 30 (per CCP 1005(b)), but declined to do so.

MR. MALINSKI: One of the posts talks about the delivery of a number of aircraft and talks about production trouble because Eclipse had advertised being able to deliver 20 a month. ... Well, the fact of the matter is, the date stamped on the date of the post follows FAA postings on their own Web site which identify the number of airplanes delivered at a particular point in time. ...

THE COURT: You didn't file any reply papers to the motion so you're basically -- why should I believe you that there was an FAA posting on this a month before?

MR. MALINSKI: ... [Another hearing should be held, either in New Mexico or in California.] But we have that hearing and it's evidentiary. It's not: File this piece of paper and you didn't file a reply so we won.

(transcript at 18:20-23, 19:4-7, 19:24-26, 20:17-19)

MS. STOREY: Your Honor, I disagree that now that he has the Complaint we need to come back to address the other issues. This was a motion to quash the subpoena. That's what we're here to decide. We provided in our opposition a very-detailed list of all the posts that we felt were violations of confidentiality agreements, and there has been no reply to those. The reply was due on the 30th. My understanding is that on Wednesday the 4th, the blog posted requests for the unreleased posters to give information about, hey, how do you come up with this information? That was well past the reply date and is still information that we haven't seen. They had an opportunity to reply and say: No, it wasn't confidential information. I got it from the FAA Web site. So we would then also have an opportunity to investigate that. That hasn't been done.

(transcript at 22:24-23:10)

MR. MALINSKI: We can't just say, as Ms. Storey says, well, you didn't file your paperwork a couple of days ago. That doesn't mean anything.

THE COURT: It does. I put a lot of attention on reply papers and what's been -- because an argument not rebutted is accepted.

(transcript at 24:24-25:1)

MR. THUMA: Your Honor, I would like to say that I think Mr. Malinski's argument would have more appeal if there was something in that document that was different from something than what we filed. There's nothing in the Complaint that would cause the least amount of surprise. Everything, the gravamen was in our opposition and in Mr. Rayburn's affidavit. And it seems like they -- his client and he were on perfect notice of what our complaint was, what our allegations were, the basis of our prima facie case, and they had every opportunity to say no, no, that's not right. ... But there's no surprise here, and they had the chance and they just failed to respond.

(transcript at 27:6-15, 27:18-20)


Ultimately, Eclipse's failure to produce the Complaint and the John Does' failure to respond to Eclipse's evidence were both forgiven. Judge Manoukian gave both sides do-overs, in that: (1) he allowed Eclipse to produce the Complaint at the hearing (rather than simply quashing the subpoena on account of Eclipse's failure to include the Complaint in its opposition papers, and thus its failure to show that it has a prima facie case for some claim in that complaint), and; (2) in his final remarks he invited the Does to attack the evidence in their supplemental briefing (rather than restricting them to only making arguments that they weren't able to make until they had the Complaint):

THE COURT: I thought that Krinsky stated a valid cause of action under Florida law, and I thought she could have stated a good cause of action under federal security law, and the court of appeal said it doesn't matter.

MS. STOREY: ... I don't think the elements or the allegations in the Complaint, particularly where we don't know the names of the people, is going to be particularly helpful or relevant.

THE COURT: Well, look at Krinsky, page 1172:

"We therefore agree with those courts that have compelled the plaintiff to make a prima facie showing of the elements of libel in order to overcome a defendant's motion to quash a subpoena seeking his or her identity."

[Krinsky v. Doe 6 (2008), 159 Cal.App.4th 1154, 1172, slip op. at 19]

MS. STOREY: Correct. We have made a prima facie case of breach of contract in regards to the non-disclosure agreement.

THE COURT: You may have, but I haven't seen it, and I haven't heard Mr. Malinski say he had an opportunity to squawk about it, since he just saw the Complaint right now. He says that it isn't that hard to allege that, that the real issue is in the affirmative defenses, but Krinsky doesn't talk about affirmative defenses. Just talks about a prima facie showing. And they say here that I'm correct that when I said that it was a, prima facie burden must have been made, and Ms. -- Dr. Krinsky said that she demonstrated that the postings were libelous per se, and the court of appeal said that saying she had a fake medical degree or she had fat thighs or poor hygiene was not libelous. That's what the case was. And overlooked completely was the fact that the stock price got driven down so much. Not important because it wasn't plead, is what Krinsky case said. So there's where I'm stuck.

Okay. I'll give you a 60-day continuance on that. [Selects August 1st from the calendar.]

What I want to see happen -- I'm just continuing this hearing, and I will be impressed by some motion practice on the validity of the Complaint and specific objections, Mr. Malinski, to the postings to say that this isn't a trade secret. Tell me why. You file those papers first per code, 21 -- 16 court days before the hearing. Opposition per code. And the reply, if any, per code.

But I think you know where I'm coming from on this, that there has to be a valid -- prima facie showing of a valid claim, that these are indeed trade secrets. And like I said, I don't think you can do anything anonymously that you can't do face to face, whether it's breaking a contract or stealing property or ideas or whatever.

(transcript at 28:5-8, 28:17-30:6)

By the words "motion practice on the validity of the Complaint", Judge Manoukian was referring to the Does filing a motion in New Mexico. Judge Manoukian had earlier asked Thuma (the only New Mexico lawyer in the room) how long that would take:

MR. MALINSKI: But where I think this motion goes is it either gets abated until I have an opportunity to deal with the Complaint --

THE COURT: I'm inclined to agree with that. Tell me, in New Mexico how long does it take to get a motion to challenge the sufficiency of a complaint on calendar.

MR. THUMA: Usually you file a motion, see if it's opposed, and request a setting. And depending on the judge's calendar, she'll set the matter. There's 20 days to respond and 15 days to reply, so it takes take a month, 45 days to have a hearing on it.

(transcript at 26:22-27:5)

The New Mexico online docket indicates that the Does did make a motion there challenging the complaint, but they did not even file it until 46 days had already passed, on July 22. That motion has been set for hearing on September 2 (88 days after the June 6 hearing).

By the words "per code", Judge Manoukian was referring to CCP 1005(b), which establishes standard briefing deadlines of 16, 9, and 5 court days before a hearing. Doing the calendrical math, one sees that he was requesting a supplemental brief from the Does by July 10, a supplemental opposition from Eclipse by July 21, and an optional reply from the Does by July 25.

The California online docket indicates the Does filed no supplemental papers by July 10, but Eclipse did file opposition papers on July 21, and the Does filed a reply on July 25.

Something Judge Manoukian did not explicitly address was (a) when (and by whom) a copy of the Complaint would be filed in California; and (b) whether or not it would be filed under seal here. Under Krinsky, I don't see how Judge Manoukian could rule that a prima facie case has been made (and that the Does' "squawk[ing]" about the Complaint is unpersuasive) without reading the Complaint himself.

The New Mexico docket now shows that on July 25, the Does filed an "UNOPPOSED MOTION TO UNSEAL FILE". I believe this means that the Complaint will soon be publicly available from the courts in both states.

Monday, June 23, 2008

The written submissions before the first hearing

I still don't have a transcript of the motion hearing that was held on June 6, 2008, but I have at last managed to obtain all of the documents that were submitted in preparation for the hearing, in particular:

  • The John Does' opening papers, filed on May 14:
  • Eclipse Aviation's opposition papers, filed on May 23:
    • The 13-page opposition memorandum.
    • The supporting evidence that is referenced by the memorandum:
      • The Declaration of Raymond Barratt, Eclipse's Chief Information Officer. It includes these attachments:
        • Exhibit A, "Preserved Posts – Eclipse Critic Blogspot", a table of blog postings.
        • Exhibit B, an untitled single page (labeled "Page 6") that appears to contain portions of two emails that Eclipse claims were written by its ex-employee Brian Skupa.
      • The Declaration of Vern Raburn, Eclipse's Chief Executive Officer. It includes:
        • Exhibit A: "Eclipse Aviation Corporation Employee Invention & Non-Disclosure Agreement (INDA)". This is the contract that was allegedly breached by unknown defendants.
        • Exhibit B: "Table of Blogger Posts That Breached the INDAs". This is the same as Barratt's Exhibit A, but with the addition of an "Eclipse Comment" column.
  • The Does' reply papers (optional), due on May 30:
    • (none filed)

See the Court Documents page for a more complete list of the filings in Eclipse Aviation Corp. v. John Doe et al., No. 1-08-CV-110380, California Superior Court, Santa Clara County.

A simple written Minute Order has been filed, which just documents who officially showed up at the hearing (Norman Malinski for the Does, David Thuma and Angela Storey for Eclipse, Judge Socrates Manoukian, a clerk, a bailiff, and a court reporter) and the fact that the matter was continued to August 1. I should be receiving a hearing transcript from the court reporter sometime in July, at which time I'll post a write-up of the arguments. If you want to get a flavor of what the hearing was like, look at the transcripts from the Fuller and Krinsky hearings in 2006 (see my May 29 post). Judge Manoukian's style hasn't changed any since then.

Below are some notes on the various submissions. This is somewhat long, so here's a Table of Contents:

1. The Does' Opening Papers

I wrote some comments about the opening papers in my May 19 post.

2. Eclipse's Opposition Papers

2.1. Retreat From 28 Identities to 14 Unreleased Posters

Eclipse's subpoena, issued on April 14, sought information from Google regarding the users of 28 "posting identity/identities". At the outset of its opposition memorandum, dated May 23, Eclipse states that over the course of the five weeks since the subpoena was issued, Eclipse has decided, as to about half of the identities, not to pursue the matter. It says this is "either because upon further review the posted entries may not have violated any of ECLIPSE'S legal rights, because the posted entries have been deleted by the poster, or because the poster has disclosed his identity to ECLIPSE, and ECLIPSE is satisfied that none of its rights were violated by such person." (Opp. at 1:8-11)

Eclipse therefore only opposes the Does' motion as to the 14 identities about which Eclipse still seeks information, which it calls the "Unreleased Posters". They are: "COLDWETMACKERALOFREALITY, NINER ZULU, FLIGHTCENTER, GADFLY, AIRTAXIMAN, FLIGHTGUY, ECLIPSO, METALGUY, TURBOPROP_PILOT, FREEDOMSJAMTARTS, EXEAC, AIRSAFETYMAN, BILL E.GOAT, and WHYTECH." (Opp. at 1:24) (Note: "FLIGHTCENTER" and "GADFLY" are not actually listed on the subpoena, but it appears that the single name "FLIGHTCENTERGADFLY" was intended to be these two distinct names.)

At the hearing, Norman Malinski stated that he represents 13 of the 14 Unreleased Posters. (He did not say which of the 14 is the unrepresented Unreleased Poster.)

2.2. Copy of the Complaint Not Filed

The Does and Eclipse agree that a crucial legal precedent for this case is Krinsky v. Doe 6 (2008), 159 Cal.App.4th 1154, which established the standard a plaintiff must meet if it is to unmask anonymous speakers. Namely, the plaintiff must make a prima facie showing of each element necessary to its claim.

To determine whether Eclipse has made the prima facie showing, one first must know what Eclipse's claims are. The ordinary way to determine what the claims in a case are is to look at the written complaint.

Eclipse's complaint was filed in the New Mexico court back on March 18. I had expected that when Eclipse filed its motion opposition papers here in California, it would include a copy of the complaint. Because the complaint was under seal in New Mexico, I figured Eclipse would seek permission to file it under seal in California as well. However, because California has stringent standards that must be met for anything to be filed under seal (see CRC 2.551), I also thought that Eclipse might not bother to try to meet those standards and would just file the document publicly here.

Eclipse chose neither of those options. It simply didn't file a copy of the complaint at all. Thus, at the start of the June 6 hearing, the only people who had seen Eclipse's complaint were Eclipse itself and Judge Linda M. Vanzi in New Mexico.

In every subpoena case cited by Eclipse, a copy of the underlying complaint had been filed in the court of the judge who had to rule on whether or not to quash the subpoena, rather than just having been filed in some court in a completely different state. Just as importantly, the complaint was also available to the other parties, which was necessary for them to be able to adequately brief the issues for the judge. See Highfields Capital, Sony Music, Apple Computer, H.B. Fuller, Krinsky, Rancho Publications, and Immunomedics (all as cited in the Table of Authorities in Eclipse's brief).

Eclipse's opposition papers do include some substantial information about the complaint: it is "for Breach of Contract and Injunctive Relief" (Opp. at 4:14-15), against unknown past or present Eclipse employees. A copy of the allegedly breached contract, the "Eclipse Aviation Corporation Employee Invention & Non-Disclosure Agreement (INDA)", can be found at Exhibit A of the Raburn Declaration. Eclipse also mentions that it "intends to amend its Complaint to add a count for violation of New Mexico's Uniform Trade Secrets Act, if it appears that particular information disclosed by particular employees comes within the definition of trade secrets" (Opp. at 6:27-28).

However, the Krinsky decision demonstrated that: (1) looking to the precise contents of the complaint may be necessary to determine the fate of the subpoena; and (2) not-yet-pleaded claims don't count:

Seeking damages and an injunction, plaintiff asserted two causes of action in the Florida complaint. All 10 defendants were accused of intentional interference with a "contractual and/or business employment relationship" between plaintiff and SFBC. Nine of the defendants were accused together of libel based on false and misleading Internet statements imputing dishonesty, fraud, improper professional conduct, and criminal activity to plaintiff. ...

[Judge Manoukian] bas[ed] [his] ruling not on any showing related to the libel claim, but on plaintiff's argument regarding stock manipulation. Plaintiff's complaint included only two causes of action: intentional interference with a "contractual and/or business/employment relationship with SFBC" and defamation. In her supplemental brief she acknowledged that she had "not yet asserted claims relating to violations of State and/or Federal securities laws." We will refrain from ruling on the adequacy of a cause of action that was never pleaded [Footnote 16:] The only reference in the complaint to stock manipulation was in the description of the defendants: "... [a long quotation from the complaint] ..."

(Krinsky, slip op. at 2 and 20-21 (hyperlinks added)) (for more documents from the Krinsky case, see my May 29 post)

At the hearing, the fact that Eclipse's complaint had not been disclosed to the Does or their attorney was the key issue. (As I wrote in the update to my June 6 post, the basic outcome was that: (1) the complaint was provided to the Does, on an attorney's-eyes-only basis; (2) further briefing was ordered; and (3) the matter was continued to August 1.)

2.3. Raburn's Table of Posts – Confidential "in part"

Eclipse's central piece of evidence, which it quotes extensively on pages 10-11 of its opposition brief, is the "Table of Blogger Posts That Breached the INDAs", Exhibit B to the Raburn Declaration. This is a table of 38 blog posts (35 by the Unreleased Posters and 3 by Shane Price), with a column labeled "Eclipse Comment".

For many of the posts, the only "Eclipse Comment" is this:

Commentary based in part on confidential information, not available to the public

This seems to me to be equivalent to saying:

(a) parts of the post are not confidential information; and
(b) somewhere in the post is some confidential information; but
(c) I decline to identify where or what the confidential information is.

California's Sixth Appellate District (which will eventually be reviewing whatever decision Judge Manoukian makes in this case, if it is appealed) took a dim view of such coyness in the H.B. Fuller case:

Again the averment is strangely indirect. Instead of simply stating what information in the posted messages was damaging, and how or why, it describes the thought processes leading to the declarant's decision to make certain statements to employees. ...

... The experience of courts over the centuries has been that one who is in a position to testify directly to facts, but who, in a formal pleading or similar submission, instead states relevant matters in an oblique, vague, attributive, conditional, incomplete, or otherwise circumlocutory manner, may be deliberately avoiding a direct (and thus more easily controverted) assertion. ... [The averments'] peculiarly attenuated form is sufficient to raise a suspicion that a more direct statement would disclose weaknesses in plaintiff's position that the attenuation is intended to conceal.

... If plaintiff specified the particular disclosures of which it complains, it would ease defendant's task of refuting the claim that those disclosures concerned "confidential information" as defined in the nondisclosure agreement. It would also open plaintiff's allegations to the response that even if a given disclosure fell within that definition, the matter disclosed was already or otherwise available to the public, such that the disclosure did not proximately cause plaintiff to sustain recoverable damages. The very nebulousness of the claimed breach suggests the possibility that plaintiff's objective was never to pursue a cause of action to judgment but only to employ the process of the court to aid an investigation into what it supposes to be a breach of corporate security.

(H.B. Fuller v. Doe (2007), 151 Cal.App.4th 879, slip op. at 19-20)

Raburn makes multiple uses of three variants of the "based in part on confidential information" allegation:

1. "Commentary based in part on confidential information, not available to the public"
2. "Commentary based in part on confidential information, not available to the public at the time of the post"
3. "Commentary based in part on confidential information obtained from former employees of Eclipse"

As to 10 of the 14 Unreleased Posters (all but Coldwetmackeralofreality, Eclipso, Freedomsjamtarts, and Exeac), the only averments Raburn makes are these vague boilerplates.

2.4. Skupa Emails

Eclipse makes much of a statement allegedly made on April 16, 2008 by its then-employee Brian Skupa:

Yes, I'm an almost daily reader of this blog too now.  Sometimes they're off by a mile, other times they're so close to the truth that there has to be someone on the "inside" feeding them info, because one couldn't guess and be that "on target".

This quote, or parts of it, are repeated three times in the opposition memorandum (at 4:3-5, 11:15-17, and 11:23). Eclipse says, as background, that Skupa was "caught 'red-handed' sending confidential business information outside the company" (Opp. at 3:26-27).

Quoting Skupa would make more sense to me if Skupa were stating that he had personally provided information to the blog, or that he had personal knowledge that someone else had done so. However, the quote is clearly not such a statement. Instead, it is just someone opining, based on his assessment of the accuracy of some of the information and his lack of knowledge of any previous public availability of the information, that it is highly likely to have been provided to the blog by an insider. In other words, the alleged Skupa statement is just offering the same opinion that Raburn offers, without adding any facts.

Perhaps Eclipse thinks it is more persuasive coming from Skupa than from Raburn because it considers Skupa's opinion to be similar to a "Declaration Against Interest" (which is one of the types of hearsay evidence that are allowed under California's hearsay rule; see Cal. Evidence Code §1230 and §§1200-1380). Obviously, the opinion that there "has to be someone" is not even a statement of a personally known fact, but it also seems to me that if everything Eclipse says about Skupa is true, then it would actually be in Skupa's interest to overestimate the probability that other employees were leaking information to the blog. The more that other employees were also violating their agreements, the less bad Skupa's engagement in such conduct would look.

Eclipse provides a longer excerpt of the alleged email in Exhibit B to the Barratt Declaration. It includes information about "a new engineering term":

Date: Wed, 16 Apr 2008 22:35:08 -0600

Yes, I'm an almost daily reader of this blog too now.  Sometimes they're off by a mile, other times they're so close to the truth that there has to be someone on the "inside" feeding them info, because one couldn't guess and be that "on target".  It's really becoming pathetic to watch this thing (e-clips) auger in.  Even the "spinners" at e-clips can't put much of a spin on anything now.  The time between when something is "spun" and the time it becomes truthfully known is becoming so compressed that it's actually embarrassing to even try to be deceptive anymore.  The quality of the airplanes now is crap.  That's a new engineering term here.  Ten of the last twelve customer aircraft broke in the Delivery Hanger with customers getting ready to fly them.  EVERYONE now will not even pay for an airplane until EVERYTHING is fixed, which usually entails at least three trips to the Service Center.  Consequently, I'm trying to juggle about twelve aircraft right now in v=

Yes, it cuts off in mid-word like that in the exhibit. There are a few oddities about this exhibit. First, it does not include any antecedent connecting the words "this blog" to the Eclipse Aviation Critic NG blog. Second, in the declaration itself there is no mention of any Exhibit B. Third, there is only one page in the exhibit, which has no title, starts in the middle of a sentence, and is labeled at the bottom as "Page 6". I believe that per CRC 3.1110(f) ("an index to Exhibits must be provided"), Eclipse should have at least revealed what the title is of the document from which this "Page 6" originated.

In addition to two partial excerpts of alleged Skupa emails, Exhibit B also includes these statements by an unidentified commentator:

There are THOUSANDS of deleted files and folders - it looks like someone has tried to remove Temporary Internet Files in an attempt to remove evidence of E-Mail and Web activity. Also, specifically in the time frame of the period after April 21st at 17:00 until the computer was seized, over 595 files were deleted from the computer - because the computer was in heavy use during this period, and because files and data get's overwritten, there is no telling how many more files have been lost.

My guess is that this exhibit is a page from an expert report in the Eclipse v. Skupa case. If the expert was not Barratt himself, then I'm not sure Barratt was justified in declaring that "I have personal knowledge of the facts set forth in this Declaration ... Among the information recovered from Mr. Skupa's hard drive was an e-mail sent by him to Kate Zaranek on April 16, 2008". (Barratt Declaration at ¶1 and ¶6).

By the way, it was reported in September 2006 that Eclipse had recently "promoted Kate Zaranek as Eclipse's new public relations specialist from her position as sales support representative." (Aviation Today, September 18, 2006). Because Eclipse is complaining about Skupa providing information to her, I assume this means that by April 2008 she was no longer one of Eclipse's own PR flacks.

3. The Does' Lack of Reply Papers

In my May 29 post, I mentioned that the deadline for the Does to file any reply papers was coming up on May 30, per CCP 1005(b). To my surprise, no reply papers were filed.

At one point during the hearing, Norman Malinski (the Does' attorney) started to talk about problems with Eclipse's evidence, and he claimed that some of the allegedly confidential information had actually been previously published elsewhere.

Had the Does submitted a declaration documenting where and when the information had been previously published, Eclipse's attorneys would have had a chance to check, before the hearing, whether or not that prior publication really existed.

That not having happened, Judge Manoukian's response to Malinski was, "You didn't file reply papers. Why should I believe what you say about the Raburn declaration? ... I put a lot of attention on reply papers ... An argument unrebutted is an argument accepted." That was the end of the discussion about Eclipse's evidence.

Friday, June 6, 2008

Hearing continued to August 1

This morning, for about 50 minutes, Judge Socrates Manoukian heard arguments on the Motion to Quash the Subpoena in Eclipse Aviation Corp. v. John Doe et al., No. 1-08-CV-110380, California Superior Court, Santa Clara County.

Rather than ruling on the motion, he then set a schedule for further written submissions from the parties, and set a second hearing date of Friday, August 1, at 10:00 A.M..

I'll try to post a longer report sometime tomorrow.

Update on Monday, June 9: Sorry, I didn't get a chance to write anything over the weekend. Here's a slightly longer report, covering what little was actually ordered at the hearing:

1. Per agreement of the parties, Judge Manoukian: (a) ordered Eclipse's attorney to immediately give the Does' attorney a copy of the Complaint that initiated the litigation; and (b) ordered the Does' attorney not to show the Complaint to anyone, not even his clients. (The Complaint has never been filed in the California court. It was filed under seal in the New Mexico court back on March 18.)

2. He continued the hearing to 10:00 A.M. on Friday, August 1, and gave the Does until Thursday, July 10 to file a supplemental brief, with a supplemental opposition from Eclipse due by Monday, July 21, and the Does' supplemental reply due Friday, July 25.

I think I'll wait until I have a copy of the official transcript before I do a longer write-up of the hearing. It will probably be a few weeks before I get the transcript. In the meantime, I hope that by the end of this week I'll have added a few more documents to the Court Documents page, especially the opposition brief that Eclipse filed back on May 23. That's the document that contains Eclipse's response to the arguments in the Does' opening brief. It also (presumably) explains exactly how Eclipse believes its other opposition papers (such as the Raburn Declaration) support Eclipse's arguments.

(That opposition brief has officially been a public document since the day it was filed (May 23). The court, Eclipse's lawyer, and the Does' lawyer all have copies of it, and I've asked all three of them to show it to me, but they've all thus far refused to do so. Of course, the only one of those three with an obligation to show its copy to the public is the court, and there's no particular time frame for that obligation. Thus, I've had to accept the parties' answers of "No", and the court's answer of "We'll let you see it sometime after the hearing".)

My requests for permission to make an audio recording of the hearing were denied. As I discussed in my June 4 letter to Judge Manoukian, that means that I may never be legally able to "provide the public with a complete, spin-free account of what occurred at the hearing", because official transcripts from proceedings in California courts are given a sort of pseudo-copyright protection by California Government Code §69954(d). I will, however, at least post some excerpts from the transcript, once I get my copy of it.

Sunday, June 1, 2008

Eclipse Aviation vs. Does: court documents and links

(This is the post to which I add new documents as I obtain them. To determine whether any new documents have been added since a previous visit, see the chronological list of additions at the bottom of the post.)

Table of Contents:



List of additions

Thursday, May 29, 2008

Transcripts of the H.B. Fuller and Krinsky hearings before Judge Manoukian

Below are edifying and entertaining transcripts of two past hearings before Judge Socrates Manoukian on motions similar to the one that is scheduled to be heard before him on Friday, June 6, 2008, in the Eclipse Aviation vs. Does case.

But first, here's a quick update on the Eclipse case: My understanding, from my conversations with deputy clerks, is that on Friday, May 23, Eclipse filed an opposition memorandum to John Doe's motion to quash the subpoena. Eclipse also filed supporting documentation and evidence, in the form of two declarations (CCP 2015.5) and a request for judicial notice (EC 453). I haven't seen any of this yet. The court's copies are currently with the research staff, who are preparing a pre-hearing report for Judge Manoukian. Eventually the documents will be returned to the records department, where they will be available for public inspection. I understand that Eclipse is not seeking to file anything under seal, which surprises me a little bit in light of the complaint in the underlying New Mexico case having been sealed. I guess the documentation that Eclipse has filed in California does not include all of the information that was found in the sealed complaint, and Eclipse believes that Judge Manoukian will have sufficient grounds to deny Doe's motion without seeing the full complaint. (Alternatively, Eclipse may have included a full copy of the complaint, after deciding that there is no longer any need for it to be kept under seal.) John Doe's reply papers are due Friday, May 30 (per CCP 1005(b)).

Back to the transcripts: the two prior cases are H.B. Fuller v. Doe and Krinsky v. Does. In both cases, as well as in the Eclipse case: (1) litigation was commenced outside of California, against anonymous defendants, pertaining to statements posted on the internet; (2) a subpoena was issued out of California Superior Court, Santa Clara County, to obtain information about the defendants from Yahoo or Google; and (3) the anonymous defendants filed motions to quash the subpoena, which were heard by Judge Manoukian.

Read the transcripts, and you'll see that Judge Manoukian is very active and free-wheeling at oral argument. His first question to the Fuller plaintiff was "who cares about what some nut case on the Internet wrote about anybody" (Fuller transcript at 4:10), and he asked Krinsky, "First of all, who believes maniacs who post anonymous crap on the internet anyway?" (Krinsky transcript at 14:6). (He quickly clarified: "The word crap, I didn't mean in a pejorative sense in the context of this case, just in general. And I shouldn't use words like that on the record." Id. at 14:10-12.)

In both cases, Judge Manoukian denied the Doe's motion. However, neither Doe's identity was ever revealed. In Krinsky, Manoukian's decision was reversed on appeal (Krinsky v. Doe 6 (2008), 159 Cal.App.4th 1154), and in Fuller, the plaintiff eventually withdrew the subpoena, after the appellate court ruled that it would not consider any sealed evidence when deciding whether or not to reverse Manoukian's order. H.B. Fuller v. Doe (2007), 151 Cal.App.4th 879.

The Fuller case has more in common with Eclipse than Krinsky does, because the underlying complaints in Fuller and Eclipse are both for breach of contract. The Krinsky complaint, in contrast, was for defamation. However, only the Krinsky case proceeded to a precedential opinion on the merits from the appellate court, and it is that appellate decision that the Eclipse John Doe cited extensively in his opening brief on his motion.

(Regarding the legends on the transcripts that state "Copying Prohibited Pursuant to GC 69954(d)": that code section only prohibits conduct by people who have "purchased a transcript". In cases that have not been appealed, purchasing a transcript from the reporter is usually the only way to obtain a transcript. However, once a case has been appealed and the reporter's transcript has been filed, any member of the public may copy or electronically scan the transcript in the records room at the Court of Appeal (which is how I obtained my copies).)

Update on July 25, 2008: I've now added an audio recording (51MB mp3) of the 53-minute oral argument in the Krinsky case, before Presiding Justice Conrad Rushing and Associate Justices Eugene Premo and Franklin Elia. This is the same unanimous panel that made the decision in the Fuller case. (There was never any oral argument in Fuller.)