CBA Record Nov-Dec 2019

temporarily). Profits were lost. How would this impact the bottom line and payroll? Is the “super secret ninja” still in the building? Johns-Byrne needed to plug the leak to stay in business – not to mention its trade secret theft and federal Economic Espionage Act claims. But how was it going to sue a nameless super secret ninja? And so it filed a Rule 224 petition against TechnoBuffalo for presuit discovery to identify the ninja. Suing a Super Secret Ninja For its part, TechnoBuffalo did what a re- sponsible journalist would do. It claimed the reporter’s privilege. Reporters can- not be compelled to reveal confidential sources. As Judge Panter observed, free- dom to report and protect anonymous tipsters is a “deeply ingrained” tradition inspired by the First Amendment and codified by the General Assembly in the Reporter’s Privilege Act. See 735 ILCS 5/8-901, et seq. Was TechnoBuffalo really a “news medium”? Were its bloggers really “re- porters”? Was the super secret ninja really a “source”? The easy, feel-good answer to these questions was, “no.” Particularly given Johns-Byrne’s predicament. “They had a leak and wanted to find out who it was. How can a printing company stay in business under these circumstances?,” Judge Panter recalls thinking. “How would you feel if your business had a mole?” And that is how Judge Panter ruled, at least initially. “It did not occur to us that a blog, something new at the time, could be a ‘news medium,’ or that its ‘bloggers’ could be ‘reporters’; it seemed more like someone’s mass-email or social media ac- count,” he recalls. And here, the “news” being reported was a leaked trade secret that benefitted the blog at the expense of others and did little to inform the citi- zenry on the important issues of the day. On the briefs, there was no “journalistic issue,” as Judge Panter puts it. “This was not Watergate.” But TechnoBuffalo moved for re- consideration. This would allow Judge Panter to bulletproof the earlier ruling with an even better opinion. “I did not

want to change my mind,” he recalls. And, as he observes, “even if lawyers do not fully develop the arguments, that does not get the judge off the hook.” So Judge Panter studied. “I read all the opinions on the reporter’s privilege and found that the law does not distinguish between ‘good’ journalism and ‘bad’ journalism,” in either the qualitative or point-of-view sense. He located the few opinions on whether blogs could be news media, a new issue in 2011. He turned to the text of the Illinois statute. To shield the “source,” the “reporter” must work for a “news medium,” a term that turns on the definition of “news.” But “news” is not defined in the statute. So Judge Panter turned to the dictionary. “News,” as it turns out, does not just mean “re- ports of recent events” but includes all “previously unknown information.” Until TechnoBuffalo’s post, the Droid Bionic was “previously unknown” to the world beyond Motorola and Johns Byrne. That left one avenue to deny recon- sideration: establish that the super secret ninja was not really a “source.” Again, the statutory text interceded. The statute broadly defines a source as “the persons or means from which news or informa- tion was obtained.” 735 ILCS 5/8-902(c) (emphasis added). Again, the Droid Bionic was “information.” And so the motion for reconsideration was granted, and TechnoBuffalo prevailed. See Johns- Byrne Co. v. TechnoBuffalo LLC , No. 2011 L 009161 (Cir. Ct. Cook County July 13, 2012). A tough result for Johns-Byrne, whom Judge Panter’s reconsideration opinion describes as a “lawful business” just trying “to protect its vital information.” Judge Panter felt for Johns-Byrne. He un- derstood the First Amendment concepts behind the broad terms in the Reporter’s Privilege statute, but did not think the General Assembly had TechnoBuffalo in mind when crafting it. But, as Judge Panter puts it, when a judge is deciding , “what you think and how you feel does not matter. The law is all that matters.” Continued on next page...

Thoughts and Feelings v. First Amendment and Reporter’s Privilege: Judge Michael Panter What happens in a business tort case when a good company falls victim to corporate espionage and those in league with the spy invoke First Amendment liberties? Retired Circuit Court Judge Michael Panter, now a mediator with ADR Systems, encountered such a case in Johns-Byrne Company v. TechnoBuf- falo LLC No. 2011 L 009161 (Cir. Ct. Cook County). Johns-Byrne, a printing company, handled sensitive trade secrets for major tech companies. Hired by Motorola to print top-secret user manuals for the not-yet released “Droid Bionic” smartphone, Johns-Byrne was bound to secrecy. But gossip tech blogs such as TechnoBuffalo were lying in wait, having promised readers advance word on not-yet-released gadgets (i.e., trade secrets). TechnoBuffalo went so far as to solicit tech employees to be “super secret ninjas,” to “discover something top secret in your store’s inventory” and turn it over to TechnoBuffalo, which promised to “take your name to the grave.” And so a tipster apparently infiltrated the Johns-Byrne files containing the top secret Droid Bionic users’ manual and delivered it to TechnoBuffalo, which was able to publish a cutting edge story on Motorola’s upcoming release. Johns-Byrne was stymied. The Mo- torola relationship was upended (at least

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