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.)


Monday, May 19, 2008

Motion to quash subpoena to be heard June 6 by Judge Manoukian

A motion to quash the subpoena has been noticed to be heard at 10:00 A.M. on Friday, June 6, 2008 before Judge Socrates Peter Manoukian in Department 7 of the Santa Clara County Superior Court (third floor of the new courthouse, 191 North First Street, San Jose). See the notice and motion that were filed on May 14 in Eclipse Aviation Corporation v. John Doe et al., Case No. 1-08-CV-110380. (There is a listing of more court documents below.)

Eclipse's written opposition to the motion is due on Friday, May 23 (per CCP 1005(b) and GC 6700(g)).

The memo argues — principally citing the recent opinion in Krinsky v. Doe 6, 159 Cal.App.4th 1154 (6th Dist., February 6, 2008) — that Eclipse must "make a prima facia showing that a claim exists" (memo at p. 5) and "explore alternative relief" that "would be less intrusive than disclosure" (Id. at p. 6).

A couple notes:

1.   It's not exactly clear to me on whose behalf attorney Norman Malinski filed this motion. He says that the motion is being made by "JOHN DOE", singular, with no indication of which of the 28 Google accounts named on the subpoena (Turn-and-Burn, et al.) have been used by his client(s). He also states that the Defendants who were sued in the underlying case in New Mexico (Doe, et al.) are the same set of people as those who used the Google accounts (Turn-and-Burn, et al.):

The Deposition Subpoena seeks ... information with respect to a series of individuals (identified in the underlying Complaint as JOHN DOES or JANE DOES) using the posting identity or identities enumerated on Page 2 of the Deposition Subpoena.

(memo at p. 1). I don't think this is necessarily correct. As far as I can see, it is possible that the defendants are people who have entered into some contract with Eclipse (most likely current or former employees), whom Eclipse alleges breached the contract by providing some information to a completely different set of people (Turn-and-Burn, et al.), who then posted the information to the EclipseCriticNG blog. If so, then in that respect this case may be more like O'Grady et al. v. Superior Court (Apple), 139 Cal.App.4th 1423 (6th Dist., 2006), in which the anonymous person who sought to quash the subpoena was not, himself, a defendant (Id. at sec. V(b)(1), slip op. p. 52-54).

Eclipse may need to make it clear who is or is not a defendant. The O'Grady court wrote:

Apple cannot have it both ways. If it is unprepared to charge petitioners with liability for trade secret misappropriation, it cannot count in its favor their status vis á vis the litigation, however culpable it may claim them to be.

... To accept Apple's position on the present point would empower betrayed employers to clothe themselves with the subpoena power merely by suing fictitious defendants, and then to use that power solely to identify treacherous employees for purposes of discipline, all without any intent of pursuing the underlying case to judgment. An employer pursuing such an objective might prefer not to join any defendants lest it expose itself to negative consequences up to and including a countersuit for malicious prosecution or abuse of process. Our sympathy for employers in such a position cannot blind us to the gross impropriety of using the courts and their powers of compulsory process as a tool and adjunct of an employer's personnel department.

(O'Grady, slip op. p. 53-54)

2.   The memo asserts that, as part of the prima facie claim analysis, "the Court is required to determine whether any statements are statements of fact, statements of opinion, satirical statements or otherwise. See Highfields [Capital Management, LP v. Doe, 385 F.Supp 2d 969 (N.D. Cal. 2005)]" (memo at p. 5). I don't see how such a determination would be relevant, because Eclipse (unlike the plaintiffs in Highfields and Krinsky) has not sued anyone for defamation. Eclipse's sealed complaint is "for breach of contract and injunctive relief", according to the New Mexico docket, and while making "statements of fact" cannot constitute defamation, it can certainly constitute a breach of contract when the contract is a non-disclosure agreement (which is what I am guessing the contract in this case is).

3.   I assume Eclipse will soon be providing the court and the movant with the specifics of the alleged breach of contract, and that most of these specifics will be put in the public record — especially as to any information that was allegedly wrongly disclosed, and was allegedly confidential at the time of disclosure, but which is clearly not confidential at the present time (i.e., it's out of the bag). A year ago, the Sixth District wrote the following about H.B. Fuller Company, an employer that sought to unmask a Yahoo poster by way of a California subpoena. Fuller did not provide much detail about its allegations to the court or to the defendant, and it provided even less detail to the public:

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. We have previously noted "the gross impropriety of using the courts and their powers of compulsory process as a tool and adjunct of an employer's personnel department." (O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1470.)

(H.B. Fuller v. Doe, 151 Cal.App.4th 879, slip op. at p. 20 (6th Dist., May 31, 2007))

At the heart of some discovery motions are questions of great significance to members of the public. The present case is one of them. While it may be said to arise from a "discovery motion" — a motion to quash a discovery subpoena — the discovery in question is not merely ancillary or preliminary to some larger litigation but is the whole end and purpose of the case, at least insofar as California courts are concerned. Moreover, the information sought is invested with a substantial constitutional interest, i.e., the First Amendment right to speak anonymously. (See Rancho Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1547.) The court's denial of the motion to quash did not merely determine some ancillary procedural point but, if affirmed by this court, inflicts upon a citizen an irrevocable loss of that constitutional interest. While no historical analog for such a proceeding comes readily to mind, the structural utility of allowing public access in a case of this kind is at least as great as that of allowing public access to a routine civil trial. Public scrutiny will encourage judicial actors to take pains to act with solicitude for cherished constitutional rights, and will help would-be anonymous speakers to ascertain the standards which will govern a judicial decision to strip them of anonymity. The deeper the public's understanding of judicial treatment of these issues, the better equipped the public will be to, for instance, seek legislative modification of the governing rules and procedures. A court's decision to lift the constitutionally infused shield of anonymity is, in short, a matter of deep and legitimate public concern, and that concern is significantly impaired whenever such a decision is made, as it was here, upon secret evidence.

(H.B. Fuller, slip op. at 15)

By the way, Judge Manoukian, who will be presiding at the June 6 hearing in Eclipse v. Does, was also the lower-court judge in both the H.B. Fuller and Krinsky cases.



Thursday, May 1, 2008

The initial filings in the Eclipse Aviation vs. Does case

The primary subject matter of this blog is Eclipse Aviation Corporation v. John Doe et al., No. D-202-CV-2008-02624, New Mexico Second Judicial District Court, Bernalillo County, filed March 18, 2008.

I'm not sure that there will ever be more than one or two entries in this blog. I created it mostly just to have a place to post some documents I had obtained that I wanted to share with anyone else who was interested in the case. I first threw them into a directory under my domain, but I thought I should also make them available through an URL that's easier to spell and remember. A blogspot URL seemed appropriate for this case.

I would like to start by giving a summary of the plaintiff's complaint. Unfortunately, the complaint is sealed, and all I really know about it is that the case information from the court's website lists the causes of action as "Breach of Contract" and "Injunction - Not Contract/Tort". I believe the order sealing the complaint is a public document, and I imagine it gives at least a cursory reason for the sealing, but I have not seen that order yet.

The main document that I have seen is the "Deposition Subpoena for Production of Business Records" that was issued on April 14, 2008 from California Superior Court, Santa Clara County, under case number 1-08-CV-110380.

The subpoena seeks:

Subscriber, Poster or Member information and details from the Web Log (BLOG) account of ECLIPSE AVIATION CRITIC NG (HTTP://WWW.ECLIPSECRITICNG.BLOGSPOT.COM/) for the individual or individuals using the posting identity/identities of [... a list of twenty-eight different aliases ...] including, but not limited to: first name, last name, zip code, and email address given when registering the account and also any and all records pertaining to user login information including, but not limited to: all remote IP addresses with corresponding dates and times logged by your system on each occurrence of the account being accessed, and remote IP address, date and time logged by your system when the account was created and all other information pertaining to the account in the custody of Google, Inc. and/or

(Deposition subpoena, at attachment 3)

Oddly, the deponent at whom the subpoena is directed is not the well-known legal person named Google Inc. (Delaware corporation #3582691), but is, instead, "Google Legal Support, Blogger CMCA [sic] Complaints":

This wording is apparently traceable to the page at, which says that Digital Millennium Copyright Act notices (a category of documents to which this subpoena clearly does not belong) should be sent to "Google, Inc., Attn: Google Legal Support, Blogger DMCA Complaints".

The other documents on file in Santa Clara are the "Declaration of Angela F. Storey in Support of Order to Issue Subpoena in California For Action Outside State" (dated April 14) and the attached "Commission to Issue and/or Obtain Subpoena in California" (dated April 10) from the New Mexico Court.

There was almost a month's delay from when the case was opened (on March 18) until the California subpoena was issued (on April 14), and you can see that this was partly because Eclipse's New Mexico counsel first served Google with a New Mexico subpoena and was apparently surprised to learn that that wasn't going to get him anywhere. As Eclipse's California counsel declares:

3. On or about March 21, 2008 ECLIPSE'S New Mexico attorney, David T. Thuma of Jacobvitz, Thuma & Walker, P.C., issued a subpoena to Google, Inc. located in Mountain View, California, Santa Clara County.

4. On or about March 26, 2008, Google, Inc. objected to the above subpoena on the grounds that said subpoena [was] not valid as it was not issued from the Santa Clara County Court.

5. ECLIPSE thereafter retained this law firm as local counsel to assist in obtaining a subpoena from the Santa Clara County Superior Court.

(Storey Declaration, at page 2)