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Apple Agrees to Stay Subpoenas in Trade Secret Case

TMO Reports - Apple Agrees to Stay Subpoenas in Trade Secret Case

by , 9:30 PM EST, February 16th, 2005

Apple Computer has agreed to not serve subpoenas on two Mac news sites seeking information on who allegedly leaked product secrets until a California Superior Court holds a hearing on a request to dismiss the case, a published report said Wednesday.

Lawyers representing the Electronic Frontier Foundation (EFF), who are in turn representing the two sites, told eWeek Apple had agreed to not serve the subpoenas until after the Superior Court of Santa Clara County, Calif., has held a hearing on the EFF's request for a protective order for its clients.

According to Annalee Newitz, a policy analyst for the EFF, the court is expected to decide on the protective order "fairly soon." A hearing on the matter could come as early as March 4, depending on the courts docket, EFF attorney Kurt Opsahl told The Mac Observer Wednesday.

Mr. Opsahl also said that if a judge rules against the EFF's motion, defendants in the case will be served subpoenas five court days after a judge rules on the EFF's motion.

In December, Apple filed a seven-page "John Doe" lawsuit and requested the owners of three Mac news Web sites produce all "documents relating to the identity of any individual or individuals who have knowledge regarding the source of posts on its site disclosing information about the product." The product in question is n un-announced audio hardware product code named "Asteroid" or "Q97". "Asteriod" has since been identified as a still un-announced Apple FireWire audio interface for GarageBand.

The subpoenas were granted by a lower in December, but for unknown reasons, Apple has held off more than two months in serving the defendants.

EFF and the law firms of Tomlinson Zisko and Richard Wiebe are defending Jason O'Grady, the owner of PowerPage.org, Kasper Jade, who publishes AppleInsider.com under a pseudonym, and Monish Bhatia, who publishes MacNN.com and provides systems administration, bandwidth allocation and other operational services to AppleInsider.com.

"This information could have been obtained only through a breach of an Apple confidentiality agreement," Apple argued in court documents. "To succeed, Apple must develop innovative products and bring those products to market in advance of its competitors. If Apple competitors were aware of Apple's future production information, those competitors could benefit economically from that knowledge by directing their product development or marketing to frustrate Apple's plans."

EFF lawyers argue that while the Uniform Trade Secrets Act holds those who receive trade secrets liable if they knowingly disseminate confidential information, Web sites and their journalists are protected by the California Constitution, the California Evidence Code, and the First Amendment of the U.S. Constitution and that the case threatens the basic freedoms of the press. The subpoenas should not be permitted because Internet journalists deserve the full protection of traditional print and broadcast journalists, the brief said.

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