H.B. Fuller Co. v. Doe

• Decision Date: 31 May 2007
• Docket Number: No. H030099.,H030099.
• Citation: 151 Cal.App.4th 879,60 Cal.Rptr.3d 501
• Court: California Court of Appeals Court of Appeals
• Parties: H.B. FULLER COMPANY, Plaintiff and Respondent, v. John DOE, Defendant and Appellant.

60 Cal.Rptr.3d 501

151 Cal.App.4th 879

H.B. FULLER COMPANY, Plaintiff and Respondent, v. John DOE, Defendant and Appellant.

No. H030099.

Court of Appeal, Sixth District.

May 31, 2007.

Stanford Law School, Cyberlaw Clinic, Jennifer Stisa Granick, San Francisco, for Defendant and Appellant John Doe.

Davis Wright Tremaine, Matthew Leish, Duffy Carolan, San Francisco, Michelle D. Fife, for Amicus Curiae Appellants California First Amendment Coalition.

Corynne McSherry, for Amicus Curiae Appellants Electronic Frontier Foundation.

Squire, Sanders & Dempsey, Jose Luis Martin, Palo Alto, for Plaintiff and Respondent H.B Fuller Company.

RUSHING, P.J.

This case involves an attempt by plaintiff H.B. Fuller Company to discover by subpoena the true identity of an anonymous defendant, appearing here as John Doe, who allegedly disclosed confidential information on a website in violation of an employment agreement between plaintiff and defendant. The trial court denied defendant's motion to quash, relying in part on documents filed under seal pursuant to a stipulated order. Those documents, and additional documents referring to them, have been filed under seal in this court pursuant to the trial court's order. Defendant has moved this court to unseal all such materials. Plaintiff contends that we should deny the motion in deference to the trial court's order. Because we detect no justification for keeping the documents under seal, we will grant the motion.

Background

It appears that plaintiff H.B. Fuller Company (sometimes Fuller) is a manufacturer of adhesives and other materials, with its headquarters in St. Paul, Minnesota. According to Fuller's human resources director, all current Fuller employees in the United States have signed an undertaking in writing not to disclose "confidential information," as there defined, "during or after employment by Fuller."

Michele Volpi declared under seal that she is the president and manager of Fuller's Global Adhesives Division. On November 1, 2005, she invited all headquarters employees to a "Town Hall Meeting," which about 150 of them attended. At the start of the meeting she "advised all attendees" that the information she was about to divulge "constituted H.B. Fuller's business confidential and proprietary information that was not to be publicly disclosed consistent with each employee's contract with the Company." She "then conveyed to the employees sensitive information affecting H.B. Fuller's Global Adhesives Division, including details about the reorganization of the Global Adhesives Division, as well as key global management, operational and staff changes."

That evening, Volpi declared, she saw the first of two messages underlying this litigation on an internet message board dedicated to discussion of plaintiffs affairs. The message was posted by a user identified only as lashwr45. It described "[y]et another reorg of Adhesives" that had been "announced" that day. The details as disclosed are only partly intelligible to the casual reader. Two days later Volpi saw a second message, also by lashwr45, containing further details, including, "Gone is the Engineering manager hired a year, ago." Volpi opined that the messages disclosed confidential information discussed at the Town Hall Meeting, which lashwr45 "had posted ... in violation of his or her employment agreement with H.B. Fuller, and in disregard of my instruction to not disclose the information outside of the Company."

On November 29, 2005, attorneys for plaintiff tried to file a complaint in the District Court for the Second Judicial District, Ramsey County, Minnesota, against "John Doe a/k/a `lashwr45.'" Plaintiffs Minnesota attorney declared below that he was unable to file the complaint because under Minnesota law, a civil action is commenced by service, not filing. The complaint contained the allegation, on information and belief, that the defendant was a Minnesota resident and employee of Fuller and that he had posted confidential business information, learned at the November 1, 2005 meeting, in violation of his nondisclosure agreement.¹ The complaint sought damages for breach of contract, plus injunctive relief.

The message board on which the messages appeared was part of an investment-oriented website operated by Yahoo! Incorporated (Yahoo), a corporation headquartered in Sunnyvale, California. In order to discover the identity of lashwr45, counsel for plaintiff petitioned the Minnesota court for a commission to secure a subpoena duces tecum in California directing Yahoo to produce materials and information concerning lashwr45. The court granted the petition and a commission duly issued.

On December 1, 2005, plaintiff commenced this proceeding under Code of Civil Procedure section 2029.010 by filing a declaration of counsel placing the Minnesota commission before the superior court and seating an intention to issue a subpoena duces tecum directing Yahoo to produce, on December 22, 2005, information identifying, or aiding in discovering the identity of, lashwr45. Such a subpoena was issued, and apparently served, on December 1, 2005.

On December 16, 2005, defendant—appearing as "John Doe aka `lashwr45'"— filed a motion to quash the subpoena on the ground that Fuller had "not made a showing that its interest in obtaining the true identity of Doe outweighs Doe's First Amendment right to speak anonymously on the Internet."

About two weeks before the motion to quash was to be heard, the parties submitted a stipulation and proposed order placing under seal certain materials relating to the motion to quash. The document recited that plaintiff intended to file under seal a declaration in opposition to the motion, the contents of which it "contend[ed] ... constitute its confidential information." It further stated that Doe might file a reply declaration under seal, the contents of which he "contend[ed] ... may contain confidential and/or private information." It provided that (1) Fuller could file the declaration of Michele Volpi under seal; (2) any reply by Doe "reflect[ing] the contents" of the Volpi declaration would also be filed under seal; (3) Doe could file a declaration without revealing his identity, although Fuller could challenge its admissibility; and (4) implicitly, Doe could also file a sealed declaration. The stipulation recited that "any information provided pursuant to a declaration that is filed under seal will be kept confidential at least until the Court provides its Order on John Doe's Motion to Quash," and that the parties "agree to seek the Court's guidance with respect to the confidentiality of these declarations at the oral argument" on the motion. The trial judge signed the document, making it an order of court.

On February 10, 2006, the court below heard argument on the motion to quash and took it under submission. On March 15, 2006, the court issued an order, accompanied by a lengthy opinion, denying the motion to quash.

On April 11, Doe took the present appeal. This court issued a temporary stay followed by a writ of supersedeas staying enforcement of the subpoena pending the outcome of the appeal. Defendant filed his opening brief under seal pursuant to the trial court's sealing order. (See Cal. Rules of Court, rules 2.551(b)(5), (c), 8.160(c)(1).)² At the same time, however, he filed the instant motion to unseal all documents. Fuller opposes the motion and has lodged its own brief on the merits under seal.

Discussion

1. Appellate Jurisdiction

Generally, discovery orders are not appealable. (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1040, 207 Cal. Rptr. 94.) That generalization is inapplicable, however, where the order is ancillary to litigation in another jurisdiction and operates as the last word by a California trial court on the matters at issue. (Id at pp. 1040-1041, 207 Cal.Rptr. 94.) If the present order were not appealable, it would be reviewable by extraordinary writ since enforcement of the subpoena would plainly deprive defendant of an important interest—his first amendment right to speak anonymously—without an effective appellate remedy. In such a case we have the power to view the notice of appeal as a petition for an extraordinary writ. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 88, pp. 147-149.) We would exercise that power here, but find it unnecessary to do so because we hold the order appealable.

II. KNBC

Doe's basic contention on this motion is that there is no justification for continuing to withhold the sealed materials from public view. To place the contention in context we must first review the landmark decision in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1181-1182, 1217-1218, 86 Cal.Rptr.2d 778, 980 P.2d 337 (KNBC), which held that trial courts cannot close civil proceedings to the public, or seal the records of such proceedings, except upon noticed hearing and findings that an "overriding interest" favors closure and cannot be adequately protected by any means less derogatory of the public's right of access to court business. In that case, the trial court had closed proceedings involving Hollywood celebrities in order to shield the jury from information not in evidence but placed on the record and published during the course of the trial. It refused to follow cases limiting its power to exclude the public, reasoning that they were "`not that recent' " and that a rejection of their restrictions was justified by unspecified recent episodes of prejudicial disclosure. (Id at pp. 1184-1185 & fn. 2, 86 Cal.Rptr.2d 778, 980 P.2d 337.)

The Supreme Court rejected this view. Chief Justice George pointed out that by statutory mandate, "`the sittings of every court shall be public'" except as otherwise provided by law. (Id at p. 1191, 86 Cal. Rptr.2d 778, 980 P.2d 337, quoting Code Civ. Proc., § 124 (§ 124).) This provision along with the common law had long been held to vest a right in the public "`to...