Unhappy with Google’s initial response that it had not paid any authors, journalists, commentators, or bloggers to comment on issues in the case, the court explained in a clarifying order that disclosure was not to be limited to those paid specifically to comment on the case. The court noted, “Just as a treatise on the law may influence the courts, public commentary that purports to be independent may have an influence on the courts and/or their staff if only in subtle ways. If a treatise author or blogger is paid by a litigant, should not that relationship be known?” Google identified five employees or consultants, and Oracle identified one blogger. Both parties stated, however, that they had not paid these individuals specifically to comment on the case. The court then stated that it would take no further action, noting that it had not been influenced by any commentary outside the record.
Order Too Broad
“Google is in a unique position to funnel commentary directly to the world in a way other companies cannot, so I can see why the court was concerned,” says Betsy P. Collins, Mobile, AL, cochair of the ABA Section of Litigation’s Pretrial Practice & Discovery Committee. But the disclosure order “was not narrowly tailored, and it is inconsistent with everything we understand about the way to limit First Amendment rights,” says Katherine M. Bolger, New York City, cochair of the Section of Litigation’s First Amendment & Media Litigation Committee.
“To the extent parties are presenting sources to the court as objective opinions, the parties may have an obligation to inform the court if the sources were paid,” says Daniel D. Quick, Troy, MI, cochair of the Section’s Intellectual Property Litigation Committee. Even though that was not the case here, “the tool was overbroad to the task” and the order “is a bit of a slippery slope,” adds Quick. He suggests that the court could simply have asked whether the sources cited by the parties had been paid.
Can Corporations Speak Anonymously?
Neither Oracle nor Google raised a First Amendment challenge to the court’s disclosure order. Section leaders, however, question its constitutionality. “What would Citizens United v. Federal Election Commission say about anonymous speech?” asks Bolger. “Citizens United says that corporations have the same rights as human speakers. You and I have the right to anonymous speech, so a corporation would have the same right,” Bolger opines. In her view, the disclosure order “should never have been issued.”
“The court was not trying to prohibit paid commentary, but just to disclose it,” believes Jessica K. Hew, Orlando, FL, cochair of the Section’s Pretrial Practice & Discovery Committee. While an order such as this “may have a chilling effect on corporate speech,” the possibility of disclosure may make corporations “smarter and wiser about what they spend their money on,” says Hew.
Effect on Discovery
Here, the responses to the disclosure order did not reveal that any sources cited by the parties had been on the payroll. Nevertheless, lawyers representing clients “in a cutting-edge field and a cutting-edge area of law must be aware of these issues and be prepared,” cautions Quick. If a client wants to cite to third-party material by a paid source, “deal with it proactively by disclosing the relationship to the court,” he suggests. “Do my clients undertake to hire bloggers or public relations people to put out information?” asks Collins, adding, “I might add this question to my client interview checklist.”
Seeking discovery of paid commentators in every case would be “overkill,” says Collins, as “probably less than five percent of cases would have sufficient dollar value for the parties to pay bloggers to put out propaganda.” Litigators in high-stakes, high-profile cases, however, may want to seek such disclosures in discovery. “With good legal skills and preparation,” says Hew, “you won’t be caught unaware of paid influence by your opponent.”
Jannis E. Goodnow is an associate editor for Litigation News.