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.)
- H.B. Fuller Company v. John Doe, No. 1-05-CV-053609,
SUPERIOR COURT OF CALIFORNIA, SANTA CLARA COUNTY.
- "Stipulation and Order re: Filing Documents Under Seal in Connection With John Doe's Motion to Quash Subpoena Issued by H.B. Fuller", dated January 27, 2006
- "Declaration of Shane V. Bohnen in Support of H.B. Fuller Company's Opposition to John Does' Motion to Quash Subpoena", dated February 26, 2006 (includes attached undated, unsigned "Complaint" that Bohnen states he attempted to file in Minnesota on November 29, 2005)
- "Order Denying Motion of Defendant to Quash Out-of-State Subpoena", dated March 15, 2006
- Stay order in appeal H030099, dated April 24, 2006
- "Order Granting H.B. Fuller's Ex Parte Application Seeking Yahoo!'s Immediate Compliance [with] the March 15, 2006 Order", dated April 26, 2006
- "Reporter's Transcript on Appeal From the Judgment of the Superior Court of the State of California in and for the County of Santa Clara Before the Honorable Socrates Peter Manoukian, Judge -- Proceedings Held on February 10, April 18, & April 24, 2006", certified July 13, 2006
- Opinion in appeal H030099 (granting a motion to unseal), dated May 31, 2007.
- "Stipulated Request for Dismissal of Appeal", dated February 25, 2008.
- "Dismissal of Appeal", dated March 4, 2008.
- Lisa Krinsky v. Does 1 through 10, No. 1-06-CV-059796,
SUPERIOR COURT OF CALIFORNIA, SANTA CLARA COUNTY.
- "Complaint for Injunctive Relief and Damages", dated January 19, 2006 (filed in Florida 17th Circuit, Case No. 06-000802)
- "Reporter's Transcript of Proceedings Held on April 28, 2006"
- "Order for Further Briefing", dated July 5, 2006.
- "Plaintiff's Further Briefing as Ordered by the Court", dated July 21, 2006
- "Order on Discovery Motions", dated October 16, 2006 (which incorporates the Plaintiff's supplemental brief).
- Audio recording (51MB mp3) and minutes of the 53-minute oral argument in appeal H030767 on January 8, 2008, before Presiding Justice Conrad Rushing and Associate Justices Eugene Premo and Franklin Elia. Lawrence Hoyle argued for Appellant Doe 6 and Robert Pearce for Respondent Krinsky.
- Opinion disposing of appeal H030767 (lower court is reversed), dated February 6, 2008.