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 Declaration of Raymond Barratt, Eclipse's Chief Information Officer. It includes these attachments:
- 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
- 2. Eclipse's Opposition Papers
- 3. The Does' Lack of Reply Papers
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] ..."
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
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.