14 DAY TRIAL // The Electronic Frontier Foundation (EFF) won the right to have hitherto secret court documents filed by the computer company unsealed.
Court documents in the Apple v. Does case were unsealed last week, and they reveal that the software giant sought to subpoena two reporters' anonymous sources without first conducting a thorough investigation inside the company.
This is a crucial issue in the case, which will be heard by the California Court of Appeal, because the First Amendment and the California Constitution require that Apple exhaust all other alternatives before trying to subpoena journalists.
EFF, along with co-counsel Thomas Moore III and Richard Wiebe, is representing journalists with the online news sites AppleInsider.com and PowerPage.org. After the sites printed articles about "Asteroid," rumored to be a much-anticipated FireWire audio interface for GarageBand, Apple claimed violation of trade secret law. In December, the company sued several unknown parties, known as "Does," who allegedly leaked information about "Asteroid" to the journalists.
Apple's point of view
The Cupertinos's company claimed that its internal investigation was itself a trade secret and would therefore need to be sealed from opposing counsel. But EFF and co-counsel successfully argued to the court that it be unsealed. Now the public can examine this new information, which clearly shows that the only computer forensics conducted by Apple were a search of Apple's email servers and a rudimentary examination of a single file server.
Apple did not examine employees' individual work computers or other devices capable of storing or transmitting electronic information, examine any telephone records, look at copy machines, or otherwise investigate the possibility that information about "Asteroid" was transmitted by means other than email.
"The First Amendment requires that compelled disclosure from journalists be a last resort," said EFF Staff Attorney Kurt Opsahl. "Apple must first investigate its own house before seeking to disturb the freedom of the press."
A California Superior Court ruled earlier this year that the subpoenas could be issued, both to the journalists' email providers as well as to the publishers of the websites themselves. After the journalists appealed, the California Court of Appeal ordered Apple to show cause as to why the journalist's petition should not be granted. No date is set yet for the hearing in the Court of Appeal.