## Facts

- Online publishers operated Apple-focused news websites that posted frequent product-related reports and had substantial readership.
- Apple developed an unreleased product code-named “Asteroid” and created internal, confidential presentation materials describing it.
- Confidential Asteroid information was leaked and posted in articles on the websites.
- Apple sued unidentified Doe defendants for trade secret misappropriation and related claims and sought to identify the leakers.
- Apple obtained subpoenas directed to (1) the website publishers and (2) the operator of an email service hosting one publisher’s email account, seeking identifying information and communications.
- The publishers sought a protective order, invoking the federal Stored Communications Act (SCA), California’s reporter’s shield, and a First Amendment–based qualified privilege for confidential sources.
- The trial court denied protection, concluding discovery could proceed because the publishers had allegedly become involved in unlawful misappropriation.
- The publishers petitioned for writ relief in the California Court of Appeal.

## Issues

1. Whether the SCA permits enforcement of a civil subpoena compelling an email service provider to produce the contents of stored emails.
2. Whether California’s reporter’s shield applies to online news publishers/bloggers, limiting enforcement of subpoenas seeking unpublished information and confidential sources through contempt.
3. Whether the qualified constitutional privilege protecting confidential sources bars compelled disclosure on the record presented, including whether the requesting party showed need and lack of alternative sources.

## Decision

- The Court of Appeal granted writ relief and directed the trial court to issue a protective order.
- The subpoena to the email service provider was unenforceable under the SCA because it sought contents of stored communications outside any statutory exception.
- California’s reporter’s shield applied to the online publishers as persons connected with a “newspaper, magazine, or other periodical publication,” and therefore subpoenas seeking sources or unpublished information could not be enforced through contempt.
- Independently, the qualified constitutional privilege for confidential sources barred the discovery because Apple did not make the required showing of necessity and exhaustion of alternative means.

## Legal Principles

- The SCA generally prohibits service providers from disclosing the contents of stored electronic communications to private parties in response to civil process, absent a statutory exception.
- California’s reporter’s shield protects persons connected with a newspaper, magazine, or other periodical publication from contempt for refusing to disclose sources or unpublished information obtained for publication; the category can include online periodical news websites.
- The qualified constitutional privilege for confidential sources permits compelled disclosure only upon a strong showing that the information is essential, goes to the heart of the claim, and is unavailable from alternative sources.
- In conflicts between trade secret claims and constitutionally protected newsgathering and publication interests, courts must apply heightened scrutiny before compelling the press to identify sources, particularly where the information has substantial public interest.

## Conclusion

The Court of Appeal held that federal law barred compelled production of stored email contents and that California statutory and constitutional protections for newsgathering extended to online news publishers, requiring a protective order against subpoenas aimed at identifying confidential sources for leaked product information.


O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 44 Cal. Rptr. 3d 72 (Cal. Ct. App. 2006)