Ruling on Fate of Protective Order in Trade Secret Case Due Next Week

SAN JOSE, Calif. -- Lawyers representing Apple Computer said Friday they have exhausted all resources in finding who leaked confidential information about an unreleased Apple product, as lawyers for three Web sites argued the Mac maker shouldnit be able to use facts found in the discovery process to force journalists into revealing their sources. Despite already making a tentative ruling in favor of Apple, the judge overseeing the case said he would making a final decision on a request for a protective order stopping Apple from obtaining information on reporter sources probably by the middle of next week.

Before Santa Clara County Superior Court Judge James Kleinberg, Apple legal counsel George Riley said Apple had interviewed all possible sources to find who leaked information to AppleInsider.com, ThinkSecret.com and PowerPage.org regarding stories about an un-announced audio hardware product code named "Asteroid" or "Q97".

"We have discussed this matter with all Apple employees and weive searched all our own servers (for information)," Mr. Riley told the court. "We have exhausted all practical means."

Attorneys from the Electronic Frontier Foundation (EFF), representing the three news organizations, argued Apple had not used all possible means in finding out the sources for the leak and should not be allowed access to information on the servers of the Web sites.

"Apple has not exhausted all other options as required (by law)," EFF attorney Kurt Opsahl told Judge Kleinberg.

"Apple says they have interviewed employees to find out who the source of the leaks might be," EFF counsel Kevin Bankston told The Mac Observer. "But it appears all they have done is conduct informal interviews. There is a long line of cases holding that actual depositions are required before they come after journalists. It is reasonable to expect that they should do discovery against those people before they can get to our journalists."

In questioning, Judge Kleinberg asked both sides where is the public interest in knowing the leaked information about an Apple product and gave an indication that the media doesnit have the right to publish information obtained from someone who has broken the law.

"Theft and use of trade secrets is a crime," said Judge Kleinberg. "Isnit there a balance...between trade secrets and protections of journalists?"

EFF lawyers argued the public does a fairly good job in defining its own interests, along with the fact that PowerPage.org has a sizable audience of over 300,000 readers -- more than subscriptions of Macworld magazine, according to the EFF attorney. Lawyers also noted that a number of mainstream news organizations had picked up on the lawsuit story.

"These facts show a clear interest by the public in Appleis products," Mr. Bankston told the court.

Mr. Riley argued that the public had no interest in the leaked information, and that only Appleis competitors could gain from the knowledge of the leaked product.

"(The three Web sites) were merely fencing stolen information," Mr. Riley suggested. "Weire vitally concerned about the precedent this would set. We didnit bring this case lightly."

At the end of the 30 minute hearing, Judge Kleinberg said he would not make a final decision today, but would take his tentative decision along with todayis hearing and issue a final written ruling as soon as possible, probably by Wednesday.

On Thursday, Judge Kleinberg tentatively ruled in Appleis favor, saying he would not approve a protective order stopping Apple from obtaining information on reporter sources. The earlier ruling is standard procedure in such civil cases to prevent unnecessary oral arguments, as often the losing side decides not to fight the preliminary decision.

Mr. Opsahl has previously said that if the court decision did not go in its favor, the EFF would seek a writ from the Calif. Court of Appeals that would protect the journalists from disclosing information about their sources.

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 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.

In December, Apple filed a seven-page "John Doe" lawsuit and requested the owners of three 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."

On February 16, Apple agreed to not serve subpoenas on the three sites seeking information on who allegedly leaked product secrets until the court held Thursdayis hearing on the matter.

Misha Sakellaropoulo contributed to this story.

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