Google may subpoena CNET reporter in copyright case leak probe; hearing reveals massive hunt for source of Schmidt depo

An attorney for Google and YouTube indicated today that the Web giants may call a prominent tech reporter to the witness stand in an effort to reveal who leaked the journalist confidential documents from the ongoing Viacom and Premier League copyright cases.

Speaking today at a hearing before federal judge Louis Stanton in Manhattan, Google/YouTube lead trial counsel Andrew Schapiro of Mayer Brown LLP said he "would certainly be interested...about hearing from" CNET News reporter Greg Sandoval in the event the court holds a trial over the issue of who leaked the reporter information, including deposition testimony from Google CEO Eric Schmidt, in the fall of 2009.

Today's hearing focused on allegations that the leaker was Robert Tur, a Los Angeles television journalist who is one of the named plaintiffs in the Premier League putative class action. Schapiro, citing "overwhelming" circumstantial evidence collected during the course of discovery, charged that Tur violated the court's protective order governing confidential information, and said that his clients are seeking to have Tur's copyright claims dismissed as a sanction. Tur's attorney Seymour Fagan adamantly denied that his client leaked: "[T]here should be no sanctions against Mr. Tur for any acts on his part because he did not participate in the leak to Mr. Sandoval."

In order to determine whether Tur leaked to Sandoval, Judge Stanton indicated that he may take the extraordinary step of holding a separate jury trial on just that issue:

The jury would determine the matters of fact, I would rule on the remedy, and if it reaches that point, there will be a short jury trial, like a separate trial on the issue of statute of limitations. The main question being, was there a breach of my order by Tur or [Tur's ex-wife].

Today's hearing revealed for the first time that an extensive investigation of who leaked to Sandoval has been occurring out of public view over the past several months. Schapiro said that "we" -- it wasn't clear whether he was referring to his law firm or to his client -- "gathered over 70 affidavits and declarations," apparently in an effort to prove that the leak did not come from Google/YouTube or its lawyers. Schapiro even told the court that "all phone records and e-mails have been searched" at Mayer Brown, but "nothing was found."

Judge Stanton asked Schapiro whether anyone had asked Sandoval directly who had leaked to him; Schapiro indicated that Sandoval had declined to reveal his source's identity during a conversation with a Google PR representative. It was then that Schapiro indicated his interest in putting Sandoval on the stand:

I would certainly be interested, although we get into other complications, about hearing from Mr. Sandoval if there were going to be a trial.

The "other complications" Schapiro was referring to is the likely ferocious fight CNET and its parent CBS would wage to keep its reporter from having to reveal his source, or sources. (In one of the articles at issue, Sandoval cited "three sources with knowledge of the case.") The Second Circuit does recognize a qualified reporter's privilege in civil cases, requiring disclosure of a confidential source "only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." In re Petroleum Products Antitrust Litig., 680 F.2d 5, 7-8 (2d Cir. 1982).

At the close of today's hearing, Judge Stanton gave permission for Google/YouTube to file its motion for terminating sanctions against Tur, and again indicated that he believes "a short, simple jury [] trial ...which will determine the rights and wrongs of the situation" is "the proper way to dispose of this." And he added, "[T]his is an important question, not a trivial one. It has got to be dealt with seriously and proper." Stanton also ordered the unsealing of several documents in the case related to the Tur matter, though they have not yet been posted to PACER. Those documents will likely reveal additional detail about the extent of Google's hunt for the source of the leaks.

It is unclear what effect, if any, Tur's potential dismissal from the case would have (other than the obvious effect on Tur himself). Viacom would remain as a plaintiff, as would the Premier soccer league, numerous music publishers, and a putative class that includes virtually every copyright owner whose works have allegedly been infringed via YouTube since April 15, 2005.