Monday, June 23, 2008

The written submissions before the first hearing

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 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

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] ..."

(Krinsky, slip op. at 2 and 20-21 (hyperlinks added)) (for more documents from the Krinsky case, see my May 29 post)

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

In my May 29 post, I mentioned that the deadline for the Does to file any reply papers was coming up on May 30, per CCP 1005(b). To my surprise, no reply papers were filed.

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.

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Friday, June 6, 2008

Hearing continued to August 1

This morning, for about 50 minutes, Judge Socrates Manoukian heard arguments on the Motion to Quash the Subpoena in Eclipse Aviation Corp. v. John Doe et al., No. 1-08-CV-110380, California Superior Court, Santa Clara County.

Rather than ruling on the motion, he then set a schedule for further written submissions from the parties, and set a second hearing date of Friday, August 1, at 10:00 A.M..

I'll try to post a longer report sometime tomorrow.

Update on Monday, June 9: Sorry, I didn't get a chance to write anything over the weekend. Here's a slightly longer report, covering what little was actually ordered at the hearing:

1. Per agreement of the parties, Judge Manoukian: (a) ordered Eclipse's attorney to immediately give the Does' attorney a copy of the Complaint that initiated the litigation; and (b) ordered the Does' attorney not to show the Complaint to anyone, not even his clients. (The Complaint has never been filed in the California court. It was filed under seal in the New Mexico court back on March 18.)

2. He continued the hearing to 10:00 A.M. on Friday, August 1, and gave the Does until Thursday, July 10 to file a supplemental brief, with a supplemental opposition from Eclipse due by Monday, July 21, and the Does' supplemental reply due Friday, July 25.

I think I'll wait until I have a copy of the official transcript before I do a longer write-up of the hearing. It will probably be a few weeks before I get the transcript. In the meantime, I hope that by the end of this week I'll have added a few more documents to the Court Documents page, especially the opposition brief that Eclipse filed back on May 23. That's the document that contains Eclipse's response to the arguments in the Does' opening brief. It also (presumably) explains exactly how Eclipse believes its other opposition papers (such as the Raburn Declaration) support Eclipse's arguments.

(That opposition brief has officially been a public document since the day it was filed (May 23). The court, Eclipse's lawyer, and the Does' lawyer all have copies of it, and I've asked all three of them to show it to me, but they've all thus far refused to do so. Of course, the only one of those three with an obligation to show its copy to the public is the court, and there's no particular time frame for that obligation. Thus, I've had to accept the parties' answers of "No", and the court's answer of "We'll let you see it sometime after the hearing".)

My requests for permission to make an audio recording of the hearing were denied. As I discussed in my June 4 letter to Judge Manoukian, that means that I may never be legally able to "provide the public with a complete, spin-free account of what occurred at the hearing", because official transcripts from proceedings in California courts are given a sort of pseudo-copyright protection by California Government Code §69954(d). I will, however, at least post some excerpts from the transcript, once I get my copy of it.

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Sunday, June 1, 2008

Eclipse Aviation vs. Does: court documents and links

(This is the post to which I add new documents as I obtain them. To determine whether any new documents have been added since a previous visit, see the chronological list of additions at the bottom of the post.)

Table of Contents:

Documents

Links

List of additions

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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.)

Documents:

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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.

Documents:

Links:

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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 petrofsky.org 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 Blogger.com.

(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 google.com/blogger_dmca.html, 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)

Documents:

Links:

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