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.)
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.
- The New Mexico case: ECLIPSE AVIATION CORPORATION, a Delaware Corporation vs. JOHN DOE;
JANE DOE; And various other unknown individuals designated VARIOUS
DOES, No. D-202-CV-2008-02624, SECOND JUDICIAL DISTRICT COURT,
COUNTY OF BERNALILLO, STATE OF NEW MEXICO
- Docket listing, as of May 19, 2008
- "Commission to Issue and/or Obtain Subpoena in California", filed April 10, 2008
- The California case: ECLIPSE AVIATION CORPORATION, a Delaware Corporation vs. JOHN DOE;
JANE DOE; and various other unknown individuals designated VARIOUS
DOES, and DOES 1 through 500, No. 1-08-CV-110380, SUPERIOR COURT
OF CALIFORNIA, SANTA CLARA COUNTY
listing, as of May 7, 2008 (as of May 19, 2008, the court's case
sccaseinfo.org, is "down for system maintenance until further notice", and has been so for more than 10 days)
- "Civil Case Cover Sheet", dated April 14, 2008
- "Declaration of Angela F. Storey in Support of Order to Issue Subpoena in California For Action Outside State", dated April 14, 2008
- "Deposition Subpoena for Production of Business Records", dated April 14, 2008
- "Application of Norman Malinski For Admission in Pro Hac Vice", dated May 2, 2008
- "Notice of Filing" (of letter re: pro hac vice application), served May 2, 2008
- "Order on Application of Norman Malinski, Esquire For Admission in Pro Hac Vice", dated May 5, 2008
to Quash and Supporting Memorandum of Points and Authorities",
dated May 7, 2008 (filed May 14, 2008) (see also this
draft version with electronic text, which I found at
charterx.com(note: pagination differs from the filed version))
- "Notice of Motion and Motion to Quash Subpoena", dated May 7, 2008 (filed May 14, 2008)
- Docket listing, as of May 7, 2008 (as of May 19, 2008, the court's case information website,
- A not-necessarily-related New Mexico case: ECLIPSE AVIATION
CORPORATION vs. BRIAN SKUPA, No. D-202-CV-2008-04029, SECOND
JUDICIAL DISTRICT COURT, COUNTY OF BERNALILLO, STATE OF NEW MEXICO
(According to the docket, this is a case for "breach of contract, breach of covenant of good faith and fair dealing, breach of the duty of loyalty, conversion, [and] misappropriatioin of trade secrets". I'm just guessing that the contracts at issue in this case and in Eclipse v. Does are both non-disclosure agreements between Eclipse and some of its current or former employees.)
- Plaintiff: Eclipse Aviation (
- Subpoena recipient: Google Inc. (
- Blog specified in the subpoena: Eclipse Aviation Critic NG (
- New Mexico counsel for Plaintiff:
Jacobvitz Thuma & Walker PC (
- California counsel for Plaintiff:
Miller Morton Caillat & Nevis
- Florida counsel for John Doe: Norman Malinski (Florida Bar #182344, admitted 1974)
- California counsel for John Doe:
The Jacobson Law Group
- Warren Stephen Jacobson (California Bar #61607, admitted 1974)
- New Mexico counsel for Plaintiff: Jacobvitz Thuma & Walker PC (
- Judge assigned to New Mexico case: Hon. Linda
M. Vanzi (
votevanzi.com) (New Mexico Bar, admitted 1995; appointed to bench in 2004)
- Judge assigned to California case: Hon. Socrates Peter Manoukian (California Bar #77289, admitted 1977; appointed to bench in 1993)
- New Mexico court case information:
- California court case information (as of May 19, 2008, the court's case information website is "down for system maintenance until further notice", and has been so for more than 10 days, but here are some links that should start working again at some point):
- California law:
leginfo.ca.gov: Constitution, Statutes, Codes (Code of Civil Procedure)
- Case law:
This is a free page at
lexisnexis.comthat provides access to all of California's precedential appellate opinions, going all the way back to the first California Supreme Court opinions in March 1850 (six months before California's admission to the Union). Unfortunately, it does not include any of the page numbers within an opinion, which makes it impossible to generate an official pinpoint citation.
This page at
findlaw.comis free but requires registration. It provides published opinions back to 1934, and includes the official page numbers.
- California Official Reports
- California Rules of