00719-20050705 Answer To Petition

TABLE OF CONTENTS

ANSWER

Page

DEMURRER

,

9

VERIFICATION

11

-1-

Mandate

returns by of

Writ

for

Petition

the

to

demurrer

and

answer

verified

of

way

Real Party in Interest Apple Computer, Inc. ("Apple"),

ANSWER

and/or Prohibition, as follows:

Apple admits the allegations in Paragraph 2..

Apple denies that Jason O'Grady is a journalist and denies that Apple lacks

is an online news magazine.

PowerPage"

"O'Grady's

sufficient information to admit or deny the remaining allegations in Paragraph2 and on that basis denies the same. 3,

lacks sufficient infonnation to admit or deny the allegations

Apple

in Paragraph3 and on that basis denies the same.

4.

lacks sufficient information to admit or deny the allegations

Apple

in Paragraph4 and on that basis denies the same.

sufficient

lacks

Apple

www.Qowernage.org.

address

Apple admits that the PowerPage website is currently located at the web

5

information to admit or deny the remaining allegations in Paragraph

.Mac

its has

affiliated

to

it

on

based

that

was

access

free

O'Grady denies

that

Paragraph

in

Apple lacks sufficient allegations

remaining

the

6 and on that basis denies the same.

service

Apple .Mac

its

Press.

to

access

deny

with PowerPage or

admit

O'Grady

provided

understanding

has

it

Peachpit free

and

Apple's

that on O'Grady

affiliation to

infonnation

O'Grady's

World

based

admits Mac

service

with provided

6.

Apple

5 and on that basis denies the same.

l I

l

7.

l

Apple denies that Apple Insider is an online news magazine. Apple lacks sufficient information to admit or deny the remaining

allegations in Paragraph7 and on that basis denies the same.

\

l

8.

Apple denies that Kasper Jade is a journalist and denies that Kasper Jade performs the reporting and editorial functions of a journalist or

l

newsperson. Apple lacks sufficient information to admit or deny

the remainingallegationsin Paragraph8 and on that basisdeniesthe

"l !

same.

..,

9.

Apple denies that Jade has performed a journalist's functions

as

a

publisher,

editor

or

reporter

for

or newsperson's

Apple

Insider.

Apple

-,

lacks sufficient information to admit or deny the remaining

allegations in Paragraph9 and on that basis denies the same.

"l

! i

10.

1

Apple

admits

that

Apple

Insider

www.aQQleinsider.com.

uses

Apple

the

lacks

web

address

sufficient

information

to admit

~

or deny the remaining allegations in Paragraph 10 and on that basis ..,

denies

I

l

11.

Apple

based

l

the same. admits

in

that

Las

Nfox.com.

Non-party

Vegas

Nfox.com

and

Apple

that

lacks

is

Karl

Kraft

sufficient

is

a

Nevada

the

corporation

president

information

of

to

admit

or

deny

the

remaining allegations in Paragraph 11 and on that basis denies the -.;

:

same.

l

12.

I

Apple

admits

that

manufactures

l

peripherals

it

is

the

and markets and

other

consumer

plaintiff

in

personal

this

and

computers

electronics

admits that it advertises those products "l

case

that

it

and related

devices.

Apple

to the public.

designs,

software, further

Apple admits

that its complaint alleges a cause of action for misappropriation of

I

l

trade secrets and that those trade secrets are alleged to exist in I i

l

2

,,

iL

infonnation about an unannounced and undisclosed Apple product.

information

parties,

secret

trade

disclosed

defendants,

Doe

as

designated

Apple further admits that it contends that unknown

about this product. Apple denies the remaining allegations in Paragraph 12.

codesecrets

trade

wrote the

Apple

of

copies

were

that

November

on product

Apple

PowerPage

at

posted

unreleased

an

),

Apple denies that Mr. O'Grady articles

those

of

named ""Asteroid." portions

were regarding

2004

23,

and

22

articles

Apple

that

14.

admits

Apple admits the allegations in Paragraph

19,

13,

Apple lacks sufficient information to admit or deny the allegation that Mr. O'Grady wrote the remaining portions of those articles and

on that basis denies the same.

Apple

denies the

remaining

allegationsin Paragraph14

19,

November

the

that

admits

further

Apple

connection.

FireWire

Apple admits that the PowerPage articles stated that the device had a

15

2004 PowerPage article contained Apple's rendering of the Asteroid product design and that the November 22, 2004 PowerPage article

contained a rendering described in the article as "a concept drawing

not

did legend

therein Only"

Know

contained to

Need

images

the

and Confidential-

"Apple

articles

Bomes

Bob

any

display

2004

PowerPage

from

" Apple admits that the November 19, 22 and 23,

Apple denies the remaining allegations in Paragraph 15. 16.

Apple admits that PowerPage

article by "Dr.

published

on November

'eeth and the Electric Mayhem"

26, 2004 an

and that the article

purported, in part, to provide a "basic summary of an article at createdigitalmusic.com

Apple further admits that the November

3

26

PowerPagearticle discussed the renderings in the PowerPage articles dated November 19 and 22, 2004, and in an Apple Insider article dated November 23, 2004. Apple lacks sufficient information to admit or deny the remaining allegations in Paragraph

PowerPage

remove the articles dated November

that

demanded

Apple

2004,

7,

December

on

that

admits

17.

Apple

16 and on that basis denies the same.

19,22,23

and 26,

2004 Apple further admits that those articles are no longer available at the PowerPage site. Apple lacks sufficient infonnation to admit or deny the remaining allegations in Paragraph 17 and on that basis denies the same.

18.

Apple

admits that on November

23, 2004, Apple

Insider published

an article entitled "Apple developing FireWire audio interface for

and that the article cited unnamed sources for

GarageBand"

lacks

Apple

product.

the

of

rendering

a

contained

article

the

information about the "Asteroid" product. Apple further admits that

sufficient infonnation to admit or deny the remaining allegations in Paragraph 18 and on that basis denies the same.

document

a

identified

has

it

that

admits

Apple

Does.

the

identifying

Apple denies that it has not exhaustedall alternative means of

that it believes to be the source of the misappropriated trade secret infornlation published on PowerPage and Apple Insider and that Apple

slides

electronic

of

consists

document

the

that

admits

further

Apple took reasonable measures to secure this document.

describing the Asteroid product and that the slides have "Apple

4.

that electronic PowerPoint

admits Microsoft's

Apple like

legends. programs

presentation

Confidential" by

created

Need-to-Know slides

19

or Apple's Keynote can be edited to alter or remove text they

a

was approximately

identified

it

that

admits

legend could be easily edited or removed Apple

document.

to-Know Confidential" that

information

or Keynote document and denies that the "Apple Need-

PowerPoint

from

secret

trade

misappropriated

the

of

source

contain. Apple denies that the document Apple believes to be the

30 employees who had access to the document, that Apple's

security employees asked these employees if they had information

knowledge of the misappropriation.

denied

employees

these

of

of the document and/or infonnation each

that

and

therein,

contained

about the misappropriation

Apple denies the remaining

allegationsin Paragraph19. 20.

Apple deniesthat it did not requestforensicanalysisof technology capableof transferringthe slidesor other relevantinformation outside of Apple.

Apple

the remaining

admits

allegationsin

Paragraph20.

21

Apple

admits that it did not use non-employee investigators to

investigatethe tradesecretmisappropriationallegedin the Complaint.

Apple denies that non-employee investigators could

pursue the investigation more aggressively than Apple's security personnel or that Apple's security personnel feared internal retaliation within Apple as a result of their investigation Apple

further deniesthat Petitionersarejournalists, deniesthat the articles about Asteroid contained identified sources for the misappropriated information, and denies that Apple did not even attempt to contact

identified sources for the misappropriated information. Apple lacks

5

sufficient infonnation to admit or deny the remaining allegations in

Parte

Points

Parte

Ex

this

that

Of

And

Ex

its

2004 Commission

13,

Memorandum admits

and

Same

And

Of

December

Issuance

on

Of

Subpoenas

For

filed

it

Support

In

Serve

Order

that

An To

Leave

For

admits Authorities

And

Granting

Application

22

Apple

Paragraph21 and on that basis denies the same.

Application sought authority to issue subpoenasto PowerPage,

or

-

Secret

Think

sufficient

and lacks

Insider Apple

Apple sites.

news

PowerPage, online

that

are

-

them

of

any

Apple

denies

Apple Insider and Think Secret to identify the proper defendants.

infonnation to admit or deny the remaining allegations in Paragraph 22 and on that basis denies the same.

remaining

the

admits

Apple

sites.

news

online

are

-

them

denies that PowerPage,Apple Insider and Think Secret - or

of

Apple any

23.

allegations in Paragraph 23

that Red Widget

infonnation

owned

Power

Page

believed

a

Apple

obtained that

and

Widget

14, 2004 Apple Red

to

for

commission

subpoena

Apple admits that on December a

24.

lacks sufficient

Apple

to admit or deny the remaining allegations in Paragraph

"Asteroid."

email

account

Apple lacks sufficient infonnation

Widget

contained

admits email

that

further

belief

his

of

Apple

for

in the Powerpage.org

Apple

Red

on

served

was

subpoena

is President ofNfox.com. counsel

infomled

Kraft

messages

Texas

no

that

admits Karl

and that Karl Kraft that

25.

Apple

24 and on that basis denies the same.

the term

to admit or deny the

remaining allegations in Paragraph 25 and on that basis denies the same.

6

allegation

the

deny

or

admit

to

28.

information

Apple admits the allegations in Paragraph 27 sufficient

27.

lacks

Apple admits the allegations in Paragraph 26.

Apple

26.

such ba..<;is

or in

that

Kraft,

on

and

Karl allegations

Kraft"

and/or Karl remaining

the

by

ofNfox.com admits

Apple

designated

Records

of Record same.

the

of

"Custodian denies

Custodian

of

that "Nfox.com's designated custodian of records" is the equivalent

Paragraph 28.

29.

Apple lacks sufficient infomlation to admit or deny the allegations

motion

a

filed

Petitioners

14,2005,

February

on

that

admits

for protective drder under Code of Civil Procedure Section 20 17(c). admits that the motion sought a protective order on the

Apple

grounds of Article I, Section 2(b) of the California Constitution, California Evidence Code Section 1070 and Mitchell v. Superior

specifically

are

in

while

to any electronic

Nfox.com,

such

as

divulg[ing]

communication

'knowingly a

from of

law contents

the

by federal entity

or

person

prohibited

providers,

service

email

addition,

Court. 37 Cal. 3d 268 (1984), and that the motion stated, "In

storageby that service,' with limited exceptionsthat do not apply here. 18 U .S.C. § 2702 Accordingly, the protective order should

7

further

Apple

Of the Order.

and

Support

In

the Non-

providers."

Protective

Of

Order

Goldstein

with their motion

Protective Support

In

Gillmor

A

Thomas

submitted

For

Professor Dan

Motion

Of Of

Journalists'

Party

Declaration

admits that the Petitioners

service

email

Journalists'

Non-Party

the

include records held by third parties, including without limitation

Declaration

30.

Apple

in Paragraph 29 and on that basis denies the same.

Apple

lacks sufficient information to admit or deny the allegations that the

journalism

and Dan Gillmor

Berkeley

UC

a

is

that Thomas Goldstein Goldstein

Thomas

that

experts,

are

sources are confidential,

the

denies

Apple

allegations.

those

of

each

denies

basis

that

on

professor, and that Dan Gillmor is a noted technology journalist and

as

paragraphs

two

contains

Apple

33.

Petition

Apple admits the allegations in Paragraph 32 the

32.

that

Apple admits the allegations in Paragraph 31

notes

31

marked

remaining allegations in Paragraph 30.

"Paragraph 33." Apple admits the allegations in the first

Paragraph33 Apple denies that petitioners are journalists. Apple admits the

34.

remaining

allegationsin the secondParagraph33

35.

Apple denies each and every allegation in Paragraph 34.

36.

Apple denies each and every allegation in Paragraph 35.

37.

Apple admits that the Respondent trial court's discovery order is not appealable. Apple denies the remaining allegations in Paragraph 36.

38.

Apple denies each and every allegation in Paragraph 37.

39.

Apple

deniesthat petitionersareentitled to the relief requestedin

follows:

as

alleges

Apple

WHEREFORE, Apple respectfully requests that:

8

granted.

be

can

relief

which

upon

claim

a

AFFIRMATIVE

DEFENSE state

to

fails

Petition

40

The

FIRST

defense,

affinnative

distinct

and

separate

a

As

Paragraphs39 through 41 or to any other relief.

be

Prohibition

and/or

Mandate

of

Writ

for

Petition

The

denied;

2 Petitionerstake nothingby this action; Apple recover its costs in this action; and

3,

be

should

Prohibition

and/or

Mandate

of

Writ

for

Petition

The

DEMURRER

4. The Court award such other relief as it considers proper.

that

stated

Order

2005

2,

June

Court's

The

granted.

be

can

Petitioners

denied becauseit fails to state a claim on which the writ relief requested by

Apple may choose to treat its preliminary opposition as the written return to

the Petition, and Apple hereby requeststhat the Court treat its preliminary

that:

requests

Petition

the

respectfully

to Apple

demurrer

of

way

by

WHEREFORE,

return

opposition as the Memorandum of Points and Authorities supporting its

This demurrer be sustained without leave to amend the

Petition; 2.

The Petition for Writ of Mandate and/or Prohibition

be

denied;

3. Petitionerstakenothing by this action; 4. Apple recover its costs in this action; and 5 The Court award such other relief as it considers proper.

()

10 LLP

MYERS

&

VENY

O'MEL

BOWMAN

A.

JAMES

EBERHART

R.

DAVID

RILEY

A.

GEORGE

Dated: July 5, 2005