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.