June 2006

Dear YLS Member:

On behalf of the Young Lawyers Section, I am pleased to present to you the June issue of ElectronicallyIn Touch.  In this issue, you will find:

• An article about the California Court of Appeals’ recent decision in the Apple Computer, Inc. case;
• Standing Out in the Crowd – our monthly column, which discusses keeping your perspective;
• Information about “Antitrust Fundamentals” – a series of free, monthly conference calls on the basics of Antitrust Law;
• Information about the NYSBAR passthru e-mail address…an exclusive NYSBA member benefit, and it’s free; and
• Save the date information for upcoming meetings.

Thank you to the young lawyers who submitted content for this issue.   You continue to keep our membership informed of hot topics and recent developments in the law in a variety of practice areas, and your career and professional development advice and guidance is a must read.  To the many of you who have not yet become actively involved with the Section or the Association, please consider writing a piece for one the Section’s publications; serving as a district/alternative representative or Section liaison; participating as a member of a committee; or planning an activity, program, or event for our membership.  The possibilities are endless and the rewards are truly invaluable!

If you are interested in sharing your articles, advice, guidance, and/or tips, please send them to us at yls@nysba.org or jcint@albanylaw.edu for inclusion in the newsletter.  ElectronicallyIn Touch is a monthly publication.  The deadline for submissions is the 10^th of each month.  

We hope that you enjoy the June issue and look forward to staying In Touch . . . .

Justina Cintrón Perino
Chairperson

Following the California Court of Appeals Judgment in the Apple Case – Is Everyone a Journalist?
By Odia Kagan *

The public’s right to freedom of information prevails over the interest of a corporation in the legal protection of its commercial secrets. This is the meaning of the May 26, 2006 holding of the California Court of Appeals in the lawsuit filed by Apple Computer, Inc. against several news websites, which provide news coverage of the company.  O’Grady v. Superior Court, No. H028579, 2006 WL 1452685 (Cal. App. 6^th Dist. May 26, 2006).

The History

In 2004, Apple Computers filed a claim against websites Appleinsider and PowerPage.org for the disclosure of the launch of an Apple product before the actual launch. Apple argued that the said publications in these websites included text and diagrams that had been copied verbatim from internal confidential company documents, which were tantamount to commercial secrets.

Apple filed claims of wrongful publication and misappropriation of commercial secrets and, as part of such claims, requested subpoenas for the production of emails, which would disclose the identity of the sources of such information. The websites requested protective orders to prevent the discovery sought by Apple. The Santa Clara Superior Court accepted Apple's arguments and denied the issuance of protective orders for the websites. The Court of Appeals, Sixth Appellate District, as aforesaid, overruled this decision.

The Court Holds: There is No Substantial Difference between a “Blogger” and a Journalist.

The owners of the defendant websites argued that they are journalists operating news websites and, therefore, are entitled to the protection awarded journalists to refrain from disclosing their sources. The Court examined this argument in two stages: (a) Are these websites indeed entitled to protection like that awarded to journalists? (b) If so, does the case include the circumstances required for the grant of such protection.

Journalist and E-magazine

The journalist’s right to refrain from disclosure of his sources, to which reference is often made as the “‘reporters’ shield,’” is granted under the California Shield Law to a producer, editor, journalist and any other person connected with or employed by “a newspaper, magazine or other periodical publication, or by a press association or wire service.” CA. Const. art. I, § 2, subd. (b). The US Constitution, as interpreted in the State of California in Mitchell v. Superior Court, 37 Cal. 3d 268 (1984), also grants such “reporter’s privilege” under certain circumstances.

The California Shield Law, which was legislated before the internet age, intended to protect the gathering and dissemination of news, and this, the Court held, was what the defendants had done in this case. Thus, the court rejected Apple’s argument that the websites did not engage in “legitimate journalism” and stated that a journalist should not be denied this protection only because the editor of the publication where he worked chose to publish the material submitted to him in its raw, unedited form.

Talkbackists are not Journalists

The Court held, however, that posts or “talkbacks” of users in websites, such as forums, chat sites etc., may indeed not constitute “news publication” and, thus, may not be entitled to the protection granted to journalists.

The defendant websites, however, are not such sites as they are more “e-zines” or webzines (online magazines that report on a certain topic) than they are blogs. As for blogs, the Court refrained from discussing or from making any unequivocal determinations, stating that this is a dynamic term; the definition of which is amorphous.

The Similarity between the Defendant Websites and Newspapers

As can be seen from the judgment, the defendant websites produce news and articles on technology issues. In fact, that Court stated that even though the definition of “newspaper” in the Shield Law requires that it be printed on paper, the legislature could not have meant to specifically exclude online newspapers from the protection of the law and, thus, the law should be interpreted as applying such protection to websites as well.

In addition, the Court addressed the similarities between the websites and the printed media: both have editors exercising editorial judgment with regard to the content conveyed thereto, they are published regularly (daily or periodically) for several years, and enjoy hundreds of thousands of visitors.

The Court held that new forms of communication, such as blogs and internet news website, should be awarded protection of privacy and freedom of expression at least in the degree provided to the traditional forms of media (the printed media) because otherwise, people would be deterred from using them.

Finally, following a discussion of the criteria set forth in Mitchell for the application of the US Constitutional privilege, the Court held that the defendant websites may refrain from disclosing their sources – both under the protection of the California Shield Law and under the US Constitution.

Standing Out in the Crowd—a monthly column
By Christina H. Bost Seaton, Esq.**

Keeping Perspective

Last night, I was having a lengthy, frustrating conversation with one of my peers at another firm.  For hours, she obsessed about a mistake in a memo that she had written for a partner.  Ultimately, the mistake didn’t really alter the substance of what she had written, but she was terrified about having been, even technically, incorrect.  My friend was convinced that she would be fired.  I was completely awestruck at the way her fear of losing her job permeated every aspect of her decision-making process.

Part of the reason my friend was so incapacitated by her fear, I think, is because she allowed her job to become the primary aspect of her identity.  Part of her really seemed to think that if she lost that job, there was nothing worthwhile about her at all.  The conversation that we had last night seemed more like the conversation that I’d expect to have with a friend who was on the verge of losing her life, not a friend who had made a mistake in a memo at work. 

I hope that all of you reading this realize that my friend’s experience should not be accepted as an ordinary, normal aspect of professional life.  Particularly in a service profession such as the law, it’s extremely important to do your best at your job.  Your job, however, is just a job.  It’s what you do every day to exercise your mind and to make money.  Your job is only one small portion of your career.  It’s an even smaller portion of who you are as an individual (or at least, it should be.) 

There will be times in your life when your job is exhausting, dull, stressful, and draining.  There will be times when you are working on a high-profile matter, and it feels like the weight of the world is riding on your shoulders.  But those times are only one short, small part of your life as a whole.  It is particularly during those times that you need to be able to remember and keep in touch with the other aspects of yourself.  You need to remember that you’re an excellent jazz trumpet player, or that you’re an avid chess player, or that you’re a wonderful mother to two bright, young boys.  Those parts of your life are what sustain you during the dark, stressful times of our jobs.

My friend has forgotten all the wonderful parts of herself which, combined with being a brilliant lawyer, make her the person who we all love.  If she were fired today, she would literally feel as though her life had ended.  Don’t lose perspective the same way.  Fight to make time in your lives and in your hearts so that you can maintain all aspects of yourselves—not just the part of you that works.  You’ll be far more likely to do a good job at work because your ability to reason won’t always be clouded by fear.  And you’ll have the added incentive of being a lot happier. 

“Antitrust Fundamentals” - A Free, Monthly Conference Call Series on Antitrust Laws
By April Tabor, Esq.***

The NYSBA Antitrust Section, in conjunction with the Antitrust Committee of the ABA Young Lawyers Division and state enforcers, is sponsoring a series of monthly conference calls entitled, “Antitrust Fundamentals,” to provide a basic understanding of antitrust law.  The series is free and for attorneys – young or old, in the public or private sector – who would like a better understanding of antitrust laws.

This year-long comprehensive series, the first to be offered by either organization’s antitrust sections, is geared towards those who may be interested in learning more about antitrust law, or who are considering a transition into this area of practice.  Each monthly seminar will focus on a particular aspect of antitrust law and will feature experienced current or former antitrust practitioners, including state enforcers, professors, and analysts.  Seminars will take place on Wednesdays, between 12:30 p.m. and 1:30 p.m., and dial-in information will be provided in advance of each conference call. 

The first call will take place on Wednesday, September 18, 2006, at 12:30 p.m., and will feature Eric Sacks, a partner at Jenner & Block in Chicago, who will discuss Section 1 of the Sherman Act.  A full schedule of the entire series will be circulated in next month’s edition, but the following provides a preview of the topics to be discussed at some of the initial seminars:

Other topics to be discussed include Section 7 of the Clayton Act (e.g., mergers and acquisitions), international antitrust, and healthcare.  For more information, please contact Bob Hubbard, Robert.Hubbard@oag.state.ny.us, April Tabor at atabor@mwe.com  or Albert Kim at albert.kim@abanet.org.

PERSPECTIVE CALL FOR SUBMISSIONS

After a two year hiatus, the Young Lawyers Section’s print newsletter, Perspective, will return this fall.  Perspective offers an opportunity for YLS members to publish substantive legal articles, reports, summaries, or updates in all areas of practice; and is a forum in which the Section and the Association can offer more-in depth treatment of career development, professional development, and networking topics for young lawyers and law students, and exchange ideas concerning issues common to the YLS membership.

New Editor, Michael Cassidy, is currently seeking submissions for the fall issue.   If you would like to author or have authored an article, report, summary, or update that would be appropriate for inclusion in the newsletter and has not yet been published, please contact Michael by telephone (518/445-2301) or by email (mcass@albanylaw.edu).  The deadline for submissions is August 1, 2006.  Submissions should be sent in electronic form to Michael’s attention at the above email address.  We look forward to hearing from you!

NYSBAR Passthru E-mail Address…An Exclusive NYSBA Member Benefit, and it’s FREE!

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SAVE THE DATES!

The following is a calendar of upcoming YLS meetings.  All YLS young lawyer and law student members are invited and encouraged to attend.  For more information about these meetings, please contact Megan O’Toole, the NYSBA YLS Staff Liaison via email at motoole@nysba.org. Save the dates!  We hope to see you!