In Jones Day v. Medianews Group, Case No. B178571, 2005 Cal. App. Unpub. LEXIS 7876 (Cal. App. Aug. 30, 2005) (Gutman, J.), the California Court of Appeal held a newspaper publisher that publishes illegally obtained material deemed "privileged and confidential" and "attorney work product" is protected from suit by California’s anti-SLAPP provision if the complaint arises from actions made in furtherance of the right to free speech in connection with a public issue.
The defendants came into possession of privileged documents Jones Day had prepared for its clients, Diebold Election Systems, Inc., a company that provides electronic voting software for use in elections. When Jones Day learned the defendants intended to publish the documents, it sued them for conversion, unfair and deceptive business practices, and misappropriation of trade secrets. The trial court granted Jones Day’s application for the return of the privileged documents, and the defendants appealed.
A few days later, however, Jones Day dismissed its complaint. The defendants then abandoned their appeal but filed a motion for attorneys’ fees under California’s anti-SLAPP statute (Cal. Code Civ. Proc. Section 425.16). ("SLAPP" stands for Strategic Litigation against Public Participation. Anti-SLAPP legislation is intended to discourage or punish lawsuits instituted to stifle free speech.) The trial court denied the attorneys’ fees motion on the grounds the defendants had not made a threshold showing Jones Day’s causes of action related to acts done in furtherance of the defendants’ free speech rights. Rather, the court reasoned, the primary right asserted by Jones Day was a right to its property—not a right protected by the First Amendment. The defendants appealed this ruling.
The California Court of Appeal reversed the trial court’s ruling, concluding Jones Day’s complaint arose from the defendants’ actions in furtherance of their right to free speech in connection with a public issue. The court reasoned the allegations of Jones Day’s complaint met the "free speech" prong because its complaint arose out of the defendants’ use of the privileged documents in connection with news reporting and because Jones Day complained it was injured by the sale of newspapers containing the privileged information.
With regard to the "public issue" prong, the court noted that "public interest does not equate with mere curiosity." Rather, it is subject of concern to a substantial number of people. In other words, there must be a relationship between the statement and the public interest. Here, the defendants met the public issue prong because their article discussed Diebold’s use of poorly tested software and hardware during the Super Tuesday primary which, according to the court, was of the "utmost interest to society." The court rejected Jones Day’s argument that the gravamen of its complaint was the return of illegally obtained property. The appellate court remanded the case to the trial court to determine whether defendants were a prevailing party entitled to attorneys’ fees.
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