Opinion: Apple, reporters, and judicial cowardice

The Mitchell Test

O’Grady and the other petitioners are not out of the woods at this point — the California reporter’s privilege is not absolute. As we noted last year, the five-part test for granting the privilege under California law is called the Mitchell test, from the case in which the California Supreme Court created the test, Mitchell v. Superior Court (1984, 37 Cal.3d 268). The trial court ruled that the subject at hand (a potential FireWire audio interface from Apple) was not a matter of the “public interest.” Relying on that, the trial court found that on balance, the Mitchell test leaned towards requiring O’Grady to disclose his source to Apple.

You should know what’s coming next: the Sixth District Appellate Court, rather than find error, decided to ignore the trial court’s finding and decide it all over again: “Because a constitutional privilege is implicated, we must subject the trial court’s order to the relatively searching standards of ‘constitutional fact review.’”

Only at this point does the appellate court finally recognize that Apple did not dispute that petitioners might be entitled to the reporter’s qualified privilege, just that they were not engaged in actions that triggered the privilege. Had the court acknowledged that earlier, however, it would not have been able to set a precedent that “online journalists” enjoy the protection of the state’s shield law, and that’s clearly where the court intended to go, no matter how many twists it took to get there.

Exhausted sources

The first two parts of the Mitchell test are an assessment of the reporter’s role in the litigation and whether the subpoena is crucial to the case at bar. We discuss these in more detail in MWJ 2006.05.31, but suffice it to say that they split the middle. Test 1 favors not forcing O’Grady to disclose his source because he is not a defendant; test 2 favors disclosure because the identity of the leaker is crucial to Apple’s lawsuit against that unknown person.

We then come to the third test, which favors forcing the journalist to disclose his sources only if all other means of discovering the information have been exhausted. Apple questioned 29 people who had access to the presentation that was sent to O’Grady, and under pain of losing their jobs for lying, all of them denied leaking the information. The trial court found that to be adequate.

The appellate court laughed at that idea, saying that this factor “weighs decisively against disclosure.” Specifically, the ruling chastises Apple for not questioning these 29 people under oath. The court noted that since Apple would probably fire anyone who admitted to leaking the information, the threat of being fired for denying the leak has no teeth.

Genentech, filing an amicus brief supporting Apple, told the court that deposing employees is “needlessly disruptive and demoralizing,” and that employers “should not be required to traumatize the workforce to protect their trade secrets.”

The court responds, “Of course no one is requiring Apple to traumatize its employees. It is entirely for Apple to decide what risks and costs to incur in pursuing the source of the leak.” In other words, no one is forcing Apple to do it unless the company wants to subpoena a reporter. “Genentech would have us relieve the employer of this dilemma by shifting its burdens onto third party journalists. Such a shifting, however, would impair interests of constitutional magnitude. There is no countervailing constitutional interest in identifying faithless employees without inconveniencing their fellow workers.”

Even if internal investigations are insufficient, the court goes back off the rails when explaining why depositions are better: “Questioning under oath exposes the person to criminal prosecution for any willful falsehoods. That is no guarantee of truthful answers, but it certainly provides a stronger incentive to tell the truth than the mere risk of discharge — a risk which, we have noted, was not obviated by truthful answers. An employee involved in a possibly criminal theft of trade secrets might invoke the privilege against self-incrimination rather than answer questions under oath, but even that would provide Apple with an extremely valuable investigative lead, to say the least.” (Emphasis in original; references omitted.)

It’s beyond laughable for the court to complain about courts being used “as an adjunct of an employer’s personnel department” and then, three pages later, say that the company has not exhausted all other means of finding the information if it doesn’t use the district attorney as an adjunct of its personnel department. Most DAs are too busy to prosecute criminal perjury complaints from their own criminal trials. The very thought that overworked and habitually underfunded prosecutors would spend their resources to seek criminal convictions or slots in an overcrowded jail for an Apple employee or contractor who leaked to a rumor site is off-the-charts ludicrous. And this from a court in Silicon Valley!

The silliness continues as the court recounts Apple’s description of its internal investigation into the leak, finding the process “conspicuously vague.” EFF, in its appeal on O’Grady’s behalf, went so far as to argue that Apple should search the home computers of employees with access to the “Asteroid” presentation, an invasion of privacy that you would normally expect to see EFF strongly oppose. As part of that, petitioners argued that Apple didn’t conduct an adequate “forensic” investigation.

The court agrees, but does so by second-guessing Apple’s procedures. The company testified that the presentation was “distributed… electronically” to 25 recipients, but because the testimony does not spell out exactly how that was done, the court seems to assume that Apple doesn’t actually know how to investigate these things. “We are left to guess at what this means. Was the file emailed? Placed on an intranet server? Handed to the recipients on a CD-ROM or other portable medium? Each of these possibilities would present its own opportunities for, or obstacles to, further investigation.”

In other words, since the appellate court decided to ignore the trial court’s findings and relitigate everything, and since Apple didn’t provide microscopic detail on its investigation to the trial court (which found Apple’s investigation suitable) or to the appellate court (which didn’t ask), the appellate court assumes that the investigation was not thorough enough to qualify as exhaustive under Mitchell.

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