Filed 3/10/17
                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT


GLASSDOOR, INC.,                                  H042824
                                                 (Santa Clara County
        Petitioner,                               Super. Ct. No. CV282558)

           v.

SUPERIOR COURT OF SANTA CLARA
COUNTY,

        Respondent;

MACHINE ZONE, INC.,

        Real Party in Interest.



        Petitioner Glassdoor, Inc. (Glassdoor), operates a Web site on which workers can
post “reviews” of past and current employers. Real party in interest Machine Zone, Inc.
(MZ) is a developer of software products including the online multiplayer game “Game
of War: Fire Age.” During the pendency of this proceeding it has rebranded itself as
“MZ” and has released a product labeled RTplatform, which it describes as “a stand-
alone real-time platform technology that enables the exchange of data between billions of
endpoints worldwide virtually simultaneously.” Prior to this rebranding, MZ brought suit
against a former employee named fictitiously as John Doe. MZ contends that in violation
of a nondisclosure agreement signed by all MZ employees, Doe posted a review on
Glassdoor’s Web site disclosing confidential information concerning the RTPlatform
technology. When Glassdoor refused to identify Doe, MZ moved for an order
compelling it to do so. The trial court granted the motion. Glassdoor brought this
petition for a writ directing the trial court to set aside its order. We have concluded that
MZ failed to make a prima facie showing that Doe’s statements disclosed confidential
information in violation of the nondisclosure agreement. Accordingly, we will grant the
requested relief.
                                       BACKGROUND
         According to the complaint, Doe posted the offending review on Glassdoor’s Web
site on or about June 21, 2015.1 Entitled “A Scandal,” the review commences by
identifying three “Pro’s” of employment at MZ: “Free food, free massages, [and a]
spacial [sic] office.” It then sets out four “Con’s,” as follows:
         “1. Management spreads unreal information to both outside VC’s and employees.
For example:
         “a) They claim that they have developed a language translator. However, their
‘translator’ just calls Google translation API. They actually don’t have a product
translator.
         “b) In July 2014, their CEO announced that they raised $250,000,000 (250
million) from JP Morgan, based on a total value 3 billion dollars. After one year has
been passed, it’s not verified by any other resources. The CEO has never mentioned it
again.




         1
         The trial court sealed the review in its entirety. Since any confidential
information disclosed in the review has now become publicly known, we asked for
supplemental briefing on the question whether the review should remain sealed. In
response, MZ conceded that the seal should be lifted. Accordingly, we have ordered that
the review and all other materials filed under seal in this matter be unsealed. See pt. IV,
post, concerning the overbreadth of the original sealing order.

                                              2
       “3. Terrible work-life balance, except for the platform team, which do not know
what to work on. For Data Science team and Game Engineering team, people usually go
home after 10:00pm and have on-call duties every month.
       “4. The senior management lost directions. The company has invested heavily in
the platform team (there are 70-80 engineers). However, after one year, nothing has been
done by that team. The CEO said in the team meeting: I don’t expect products and
revenue from the platform team. I only want you can show demos. The platform is only
for attracting investments from VCs.” (Some punctuation regularized.)
       Under the heading “Advice,” the review stated, “Stop telling the investors and
employees the unreal information. A company cannot survive forever by cheating!” The
review went on to assert that employees were “Very Dissatisfied”; that they, or Doe,
“ ‘Disapprove’ [of] Gabriel Leydon (CEO)”; that Doe would not recommend MZ to a
friend; and that MZ’s business outlook was “Getting Worse.”
       According to MZ, it notified Glassdoor on June 22, 2015, that, in its view, the post
disclosed “confidential information regarding Machine Zone’s valuation and fundraising,
as well as internal, confidential statements made by Machine Zone’s CEO and
management regarding Machine Zone's confidential and strategic business plans.” MZ
states that the review was removed from the Web site on June 23.
       MZ filed its complaint on July 1, 2015, asserting a single cause of action against
Doe for breach of contract. It alleged that Doe breached the nondisclosure agreement by
“disclosing to third parties Machine Zone’s confidential, non-public information.” MZ
did not identify the statements in the review supposedly having this effect; nor did it
specify the confidential information supposedly disclosed. Instead it broadly alleged that
Doe had “provided details concerning undisclosed technology Machine Zone has and is
developing, the stage of development of that technology and the scope of Machine



                                             3
Zone’s investment therein.” MZ further alleged that the post “quoted Machine Zone
CEO Gabriel Leydon’s confidential internal statements concerning that technology.”
       On July 2, Machine Zone promulgated a subpoena directing Glassdoor to produce
a copy of Doe’s review as well as information identifying its author. Glassdoor produced
a copy of the review, but otherwise objected to the subpoena on the grounds, among
others, that disclosure of the poster’s identity would violate his “right to speak
anonymously under the First Amendment,” and that Machine Zone had “failed to make a
prima facie showing that any statement in the review . . . is actionable.”2
       MZ filed a motion to compel. It challenged Glassdoor’s standing to assert Doe’s
First Amendment rights and argued that MZ had “made a sufficient showing to entitle it
to disclosure of Defendant’s identity.” MZ also moved to file the entire review under
seal, asserting that the review “contains information that is confidential, non-public and
competitively sensitive,” and that “[d]isclosure of this kind of confidential information is
highly detrimental to Plaintiff and would cause Machine Zone competitive and
irreparable business harm by providing competitors with insight into technology
development and business plans at Machine Zone.”
       Glassdoor opposed the motion to compel, insisting that it had standing to object
and arguing that MZ had not presented adequate evidence of either a breach of the
nondisclosure agreement or of resulting injury. With respect to breach, it contended that
MZ had failed to establish that the review disclosed any information that was covered by
the nondisclosure agreement. It emphasized that MZ had not specified which statements
in the review were supposed to have revealed confidential information, nor the
confidential information they supposedly revealed. It also presented evidence that some


       2
         We use the masculine pronoun to refer to Doe because that treatment is
consistent with the fictitious name by which he is sued.

                                              4
of the more concrete statements in the review disclosed information that was already
publicly available.
       The trial court granted the motion to compel. Glassdoor petitioned this court for
an extraordinary writ vacating the order and directing the trial court to deny the motion.
We issued a stay, followed by an order to show cause why the requested relief should not
be granted.
                                         DISCUSSION
   I. Standing
       A. State of the Law
       There is no question that Doe had a right, protected by the First Amendment, to
speak anonymously. (See Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1163-1164
(Krinsky), citing Talley v. California (1960) 362 U.S. 60, 64, McIntyre v. Ohio Elections
Com’n (1995) 514 U.S. 334, 341-342 & Watchtower Bible and Tract Society of New
York, Inc. v. Village of Stratton (2002) 536 U.S. 150, 166.) However MZ contends that
Doe’s First Amendment rights are personal to him and may not be erected by Glassdoor
as a barrier to discovery. This contention raises a true question of jus tertii standing, i.e.,
the ability “to defeat a claim by asserting the paramount rights of a third person.”
(Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 989-991.)
       A decade ago, such a contention presented a relatively novel question. Now,
however, a substantial preponderance of national authority favors the rule that publishers,
including Web site operators, are entitled to assert the First Amendment interests of their
anonymous contributors in maintaining anonymity. (See Digital Music News LLC v.
Superior Court (2014) 226 Cal.App.4th 216, 228, fn. 12, quoting Rancho Publications v.
Superior Court (1999) 68 Cal.App.4th 1538, 1541 [“ ‘a nonparty ‘to civil litigation (such
as a newspaper) [may] assert the constitutionally protected rights of an author to remain
unknown’ ”]; McVicker v. King (W.D. Pa. 2010) 266 F.R.D. 92, 95 [“The trend among

                                               5
courts which have been presented with this question is to hold that entities such as
newspapers, internet service providers, and website hosts may, under the principle of jus
tertii standing, assert the rights of their readers and subscribers.”]; In re Indiana
Newspapers Inc. (Ind. Ct. App. 2012) 963 N.E.2d 534, 549 [“when a third-party entity,
such as a newspaper, is subpoenaed to reveal the identity of an anonymous commenter
who has used that third party as a forum for his anonymous speech, the third-party has
standing to contest the subpoena under the principle of jus tertii”]; Pilchesky v. Gatelli
(Pa. Super. Ct. 2011) 12 A.3d 430, 437, fn. 9 [dictum; standing not raised and not subject
to determination sua sponte]; Trawinski v. Doe (N.J. Super. Ct. App. Div., Jun. 3, 2015)
2015 WL 3476553, at p. 5; In re Subpoena Duces Tecum to America Online, Inc. (Va.
Cir. Ct. 2000) 52 Va. Cir. 26, 2000 WL 1210372 (AOL), revd. on another ground in
America Online, Inc. v. Anonymous Publicly Traded Co. (2001) 261 Va. 350 [542 S.E.2d
377]; In re Verizon Internet Services (D.D.C.2003) 257 F.Supp.2d 244, 257-258
(Verizon), revd. on another ground in Recording Industry Ass’n. of America, Inc. v.
Verizon Internet Services, Inc. (D.C.Cir.2003) 351 F.3d 1229, 1239.)
       B. The Matrixx Decision
       MZ contends that a contrary rule was adopted by this court in Matrixx Initiatives,
Inc. v. Doe (2006) 138 Cal.App.4th 872 (Matrixx). But that case did not involve the
standing of a publisher or service provider. The person attempting to assert the rights of
the anonymous online speaker there was a deponent who denied any connection to the
offending posts, even though one of them had been traced to a hedge fund he managed.
(Id. at p. 876.) This made him a “third part[y] in a lawsuit that may have nothing to do
with [him].” (Id. at p. 879.) As such, he had no right to assert the interests of
“presumably unrelated third parties.” (Id. at p. 881.) The court did not disagree with
decisions, including some of those cited above, in which service providers had
successfully asserted standing to defend their subscribers’ First Amendment right to

                                               6
anonymity. (Id. at pp. 880-881, citing AO, supra, 261 Va. 350 [542 S.E.2d 377];
Verizon, supra, 257 F.Supp.2d 244, 257-258.) Rather the court distinguished those cases
on the ground that each of them had found standing in “an entity with a sufficiently close
relationship to the anonymous user that judicial consideration was warranted.” (Matrixx,
supra, at p. 880.)
       Glassdoor is not an avowed stranger to the speaker, as was the objector in Matrixx.
It is the acknowledged publisher of the speech at issue. Such a publisher has a strong
interest in protecting the right of its users to speak anonymously. Thus the court in AOL,
supra, 261 Va. 350 [542 S.E.2d 377], observed that the service provider would be
harmed by disclosure of the user’s identity because “ ‘[i]f [it] did not uphold the
confidentiality of its subscribers . . . one could reasonably predict that [its] subscribers
would look to [its] competitors for anonymity.’ ” (Matrixx, supra, 138 Cal.App.4th at
p. 880, quoting AOL, supra, 52 Va. Cir. 26, 32.) Similarly, failure by the service
provider in Verizon, supra, to protect its users’ anonymity would diminish its “ ‘ability to
maintain and broaden its customer base.’ ” (Matrixx, supra, 138 Cal.App.4th at p. 880,
fn. omitted, quoting Verizon, supra, 257 F. Supp. 2d 244, 258.) Another court found that
a newspaper had standing to defend a poster’s anonymity, where “preventing [it] from
asserting the First Amendment rights of anonymous commentators” on its Web site
would “compromise the vitality of the newspaper’s online forums, sparking reduced
reader interest and a corresponding decline in advertising revenues.” (Enterline v.
Pocono Medical Center (M.D. Pa. 2008) 751 F.Supp.2d 782, 786.)
       The situation here is the same as in the cases distinguished by Matrixx. As
Glassdoor’s corporate counsel declared, its business model “relies on maintaining its
users’ anonymity. The reliability of the information on glassdoor.com would likely
decrease if litigants could readily obtain users’ identities, because users would fear
retaliatory litigation based on the information they posted.” This would naturally tend to

                                               7
harm Glassdoor’s interests, because its usefulness to potential readers depends on the
degree to which posters feel able to frankly recount their employment experiences
without fear of adverse consequences. In the case of a current employee, such
consequences can be severe, up to and including termination of employment. Even a
past employee may be exposed to retaliation by, for instance, unfavorable references.
Anonymity may provide a would-be poster’s only real protection against such
consequences. By providing it, Glassdoor creates an opportunity for users to safely
provide content of interest to other users. In exchange Glassdoor receives content which,
it hopes, will draw readers to its site and from which it undoubtedly hopes to derive
revenue.
       Anonymous publication thus furnishes not only the medium through which
persons like Doe exercise their First Amendment rights, but is also a significant asset in
Glassdoor’s business—an asset in which Glassdoor possesses a direct pecuniary interest
squarely aligned with the interest of each anonymous content provider.3 This symbiosis
constitutes a “sufficiently close relationship . . . that judicial consideration [i]s
warranted.” (Matrixx, supra, 138 Cal.App.4th at p. 880.)
       C. “Practical Obstacles”
       Quoting Matrixx, supra, 138 Cal.App.4th at page 877, MZ contends that a third
party such as Glassdoor may assert an absent party’s First Amendment interests only if

       3
           Glassdoor has not contended that it is protecting its own First Amendment
interests in this matter, but such a contention might have considerable color if urged in a
proper case. After all, Glassdoor is itself a publisher of the speech at issue and the
present matter threatens to impair its ability to continue to publish speech supplied to it
by anonymous content providers. In this regard its interests resemble those of a news
outlet resisting disclosure of the identity of a confidential source. Its position differs only
in that it does not, apparently, exercise any editorial control over the speech it publishes,
acting instead as a passive conduit for the speech of others. It is far from clear that this
fact should deprive it of the status of a speaker seeking to protect its own First
Amendment rights.

                                                8
the evidence discloses “ ‘some hindrance to the third party’s ability to protect his or her
own interests.’ ” The quoted requirement is one of the limitations on standing adopted by
federal courts. (Powers v. Ohio (1991) 499 U.S. 400, 411.) It is not, however, among the
jurisdictional constraints arising from the constitutional requirement of a “case[]” or
“controvers[y].” (U. S. Const., art. III, § 2; see Enterline v. Pocono Medical Center,
supra, 751 F.Supp.2d 782, 784-785; Singleton v. Wulff (1976) 428 U.S. 106, 115-116.) It
is instead one of the prudential considerations intended to protect the integrity of the
judicial process. As such, it is to be flexibly applied in a manner befitting its purposes,
and “should not be applied where its underlying justifications are absent.” (See Singleton
v. Wulff, supra, 428 U.S. at p. 114.) The high court has identified two such justifications:
the undesirability of triggering an unnecessary adjudication where the holder of the rights
at issue “do[es] not wish to assert them, or will be able to enjoy them regardless of
whether the in-court litigant is successful or not,” and the desirability of ensuring that the
third party’s interests are not represented by an inadequate advocate. (Id. at p. 114.)
       Here the first objective does not appear to be at issue since Doe has already
asserted his right to speak anonymously and Glassdoor’s disclosure of his identity would
effectively destroy that right. Nor do we see any reason to suppose that Doe would be a
better advocate than Glassdoor. Indeed, it appears that in settings like this one, the
opposite will typically be true. Several cases in similar contexts have disposed of the
“hindrance” issue on the rationale that anonymous speakers cannot represent their own
interests without sacrificing the very anonymity they seek to protect. (E.g., Enterline v.
Pocono Medical Center, supra, 751 F.Supp.2d at p. 785; McVicker v. King, supra, 266
F.R.D. 92, 95-96; cf. NAACP v. Alabama (1958) 357 U. S. 449, 459 [association could
assert right of members to remain anonymous because “[t]o require that [the right] be
claimed by the members themselves would result in nullification of the right at the very
moment of its assertion”].) This is a compelling argument where it is clearly true, but in

                                              9
California the reality is more nuanced because our courts allow a speaker in Doe’s
position to defend the right to anonymity under a fictitious name. (E.g., Krinsky, supra,
159 Cal.App.4th 1154; see Immunomedics, Inc. v. Doe, et al. (2001) 342 N.J.Super. 160,
775 A.2d 773.) Of course, such a speaker may be unable to physically participate in the
proceedings without betraying his or her identity, and this may be a hindrance in various
respects, including the presentation of evidence. To that extent, at least, a publisher is in
a better position to represent an anonymous author’s interests than the author is, for it
does not risk losing the anonymity at issue simply by appearing in court. (See Enterline
v. Pocono Medical Center, supra, 751 F.Supp.2d 782, 785-786 [reasoning that since
anonymous posters had apparently acquired their information in an “employment or other
close interpersonal relationship” with the plaintiff or other involved parties, “and since
disclosing the commentators’ identities risk[ed] damaging these relationships, . . . [the
posters] face[d] practical obstacles preventing them from personally asserting their
rights”].)
       Doe could of course engage counsel to appear on his behalf, but there is no reason
to believe that this would yield better representation than Glassdoor will provide. Indeed,
one consequence of denying standing to a publisher in Glassdoor’s position would be to
cast upon the anonymous speaker the potentially prohibitive cost of defending the right to
anonymity. MZ’s approach would thus result in what Justice McAdams characterized as
sending mixed signals to would-be anonymous speakers: “The good news . . . [is that]
your message will be protected by the First Amendment and your identity will be
protected by the court quashing a third party subpoena . . . . The bad news: it may cost
you tens of thousands of dollars to preserve your anonymity.” (Tendler v.
www.jewishsurvivors.blogspot.com (2008) 164 Cal.App.4th 802, 810 (Tendler) (conc.
opn. of McAdams, J.).) There is no basis to assume that the typical online commenter
has access to that kind of money. If not, and unless they can interest some charitable

                                             10
third party in financing a defense, the denial of standing to their publishers may inflict not
a mere hindrance, but a practical bar to defending their own interests.
       Even where the anonymous speaker can afford to pay for a defense, the prospect
of doing so can only inhibit the speech at issue. Most content providers like Doe are
unlikely to receive, and do not expect to receive, any economic reward for the content
they provide. MZ’s rule would require them to decide whether to engage in an activity
creating a significant risk of substantial pecuniary harm while offering no prospect of
material reward. The prudent decision is to refrain from posting. From this perspective
the publisher may have a greater interest in the right of anonymity than its contributors
do, for they have the option of simply declining to speak—a decision that directly injures
the publisher’s business. If the publisher is prepared to ameliorate this inhibiting effect
by stepping into its contributors’ shoes when their anonymity is threatened, we see no
sound reason to forbid it. Denial of that right would serve neither the purposes of
prudential standing requirements nor the broader interests of a society devoted to the free
flow of ideas and information.
       Of course the right to speak anonymously is not an unalloyed good. Anonymity
can facilitate various kinds of harmful speech, including defamation, wrongful disclosure
of private information, and malicious disinformation. But we are here concerned with the
threshold question whether jus tertii standing is justified by the inhibitory effect of
burdening anonymous speakers with the cost of preserving their anonymity before any
assessment of wrongfulness has been made. Indeed, in its present posture it cannot even
be assumed that a suit such as this one was filed in the reasonable belief that the speech
was wrongful, or with the reasonable hope of prevailing. As Justice McAdams observed
in Tendler, supra, 164 Cal.App.4th at page 812 (conc. opn. of McAdams, J.), “[s]ome
requests” for disclosure of a poster’s identity “will be based on a legitimate right to
discover the source of libelous statements or business disinformation schemes; but some

                                              11
will be solely for the purpose of silencing a critic by harassment, ostracism, or
retaliation.” We would go further and suggest that some attacks on anonymity may be
mounted for their in terrorem effect on potential critics. Here, for instance, such a suit
might be intended to deter other past or present employees from criticizing MZ—an
effect that would violate the public policy manifested in California statutory law, which
prohibits employer restrictions on, or punishment for, speech regarding conditions of
employment. (Lab. Code, § 232.5.) The message conveyed to such would-be speakers
by the rule MZ advocates is the one articulated by Justice McAdams: that they may be
entitled to engage in anonymous criticism, but only if they are prepared to pay a
significant sum—or, as he says, “tens of thousands of dollars”—to prevent disclosure of
their identities. (Tendler, supra, at p. 810 (conc. Opn. of McAdams, J.).) We do not
believe such a regime strikes the right balance between the interests of the anonymous
speaker and those of the allegedly aggrieved subject of the speech.
          We conclude that Glassdoor has standing to assert John Doe’s interest in
maintaining his anonymity as against Machine Zone’s efforts to compel Glassdoor to
identify him.
   II. Standard of Review
          Both parties treat our decision in Krinsky, supra, 159 Cal.App.4th 1154, as
providing the proper analytical framework for determining whether MZ is entitled to
discover Doe’s identity. As we there observed, disputes of this kind are governed by a
tripartite standard of review. We review the trial court’s order independently insofar as it
rests on undisputed facts. (Id. at p. 1161.) We also determine independently the scope of
First Amendment protection to be accorded to the speech upon which the plaintiff’s claim
is predicated. (Id. at pp. 1161-1162.) We defer to the trial court’s findings of fact on
non-constitutional questions so long as they are supported by substantial evidence.
(Ibid.)

                                              12
   III.   The Krinsky Requirements
       In Krinsky, an officer of a Florida corporation brought suit for libel and
interference with advantage against the anonymous authors of “scathing” posts on a
financial message board. (Krinsky, supra, 159 Cal.App.4th at p. 1158.) To determine
their identities, she subpoenaed records from the service provider who hosted the board.
The trial court ordered disclosure, and one of the anonymous posters petitioned this court
for a writ. After reviewing various approaches adopted by other courts in similar
situations, we concluded that the plaintiff had to satisfy two requirements to overcome
the defendant’s constitutional right to preserve his or her anonymity. First, if the
defendant has not received notice of the attempt to lift the shield of anonymity, the
plaintiff must make reasonable efforts to provide such notice. (Id. at p. 1171.) Second,
the plaintiff must “make a prima facie showing that a case for defamation exists” (ibid.;
see id. at p. 1172), by “setting forth evidence that a libelous statement has been made”
(id. at p. 1172, fn. omitted). We described the required quantum of evidence as “ ‘that
which will support a ruling in favor of [the plaintiff] if no controverting evidence is
presented. [Citations.] It may be slight evidence which creates a reasonable inference of
fact sought to be established but need not eliminate all contrary inferences. [Citation.]’ ”
(Id. at p. 1172, fn. 14, quoting Evans v. Paye (1995) 32 Cal.App.4th 265, 280, fn. 13.)
       Although the present case does not sound in libel, we see no reason to doubt that
the same principles apply. In any action predicated on anonymous speech, regardless of
legal theory, the plaintiff should not be able to discover the speaker’s identity without
first making a prima facie showing that the speech in question is actionable. Here this
means a prima facie showing that Doe’s review contained statements that had the effect
of disclosing confidential information, as defined by the nondisclosure agreement. The
showing must be sufficient to “support a ruling in favor of [MZ].” (Krinsky, supra, 159



                                             13
Cal.App.4th at p. 1158, fn. 14, quoting Evans v. Paye, supra 32 Cal.App.4th 265, 280,
fn. 13.)
   IV. Specification of Actionable Statements and Their Alleged Meanings
       In addition to the requirements laid out in Krinsky, we believe it is necessary to
require that a plaintiff seeking to discover the identity of an anonymous speaker first
clearly specify the statements claimed to be actionable, state the actionable meanings
assertedly conveyed by them, and set forth, if necessary, evidence sufficient to sustain a
finding that the statements were capable of conveying those meanings. As we noted in
Krinsky, at least one court had adopted a rule requiring the plaintiff to “set forth the
specific statements that are alleged to be actionable.” (Krinsky, supra, 159 Cal.App.4th
at p. 1167, citing Dendrite International Inc. v. John Doe No. 3 (2001) 342 N.J.Super.
134, 775 A.2d 756; see also Quixtar Inc. v. Signature Management Team, LLC (D. Nev.
2008) 566 F.Supp.2d 1205, 1216, fn. omitted [“Plaintiff should not be afforded discovery
regarding the identity of any anonymous author where the exact statement at issue has not
been put into evidence”].) Another court, we observed, had deemed such a requirement
superfluous because, under the law of that jurisdiction, the offending statements in a libel
case “must be quoted in the plaintiff’s complaint.” (Krinsky, supra, at p. 1169, citing
Doe v. Cahill (Del. 2005) 884 A.2d 451, 461.) In defamation cases California follows a
similar pleading rule, under which “the words constituting an alleged libel must be
specifically identified, if not pleaded verbatim, in the complaint.” (Kahn v. Bower (1991)
232 Cal.App.3d 1599, 1612, fn. 5; see Vogel v. Felice (2005) 127 Cal.App.4th 1006,
1017, fn. 3; Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31-32 [description of allegedly
defamatory statements was “a paradigm of vagueness, and does not even come close to
the specificity required to state an actionable libel claim”]; 5 Witkin, Cal. Procedure (5th
ed. 2008) Pleading, § 739, p. 159 [“the complaint should set the matter out verbatim,
either in the body or as an attached exhibit”].)

                                              14
       However, we were not called upon in Krinsky to consider whether the defendants
had been adequately apprised of the statements to which the plaintiff objected. We
therefore did not discuss such a requirement beyond acknowledging that it had been
imposed elsewhere. Here, in contrast, Glassdoor repeatedly complained of MZ’s failure
to clearly identify the language it claims is actionable, and MZ steadfastly refused to do
so, at least on the record, until it filed its return in this court. In an e-mail sent nine days
before MZ filed its motion to compel, Glassdoor’s counsel wrote, “as I noted in our call,
Glassdoor remains uncertain as to which specific statements in the review at issue
disclosed confidential information that is precluded from disclosure by the
Confidentiality Agreement, and neither your e-mail below nor Mr. Esmail’s declaration
makes clear which statements are at issue.” Later in the same message he wrote, “Please
let me know which particular statements in the review Machine Zone believes to contain
information subject to the Confidentiality Agreement.” Counsel for MZ declared below
that he had responded to the foregoing entreaties with an email which quoted “the
statements at issue in Machine Zone’s breach of contract claim.” But while he described
some aspects of the message and purported to summarize some of its contents, his
recapitulation did not include any quotations of allegedly actionable statements.
       We do not believe a plaintiff in MZ’s position is entitled to compel the disclosure
of an anonymous poster’s identity without first clearly identifying, on the record, the
specific statements claimed to have given rise to liability. It is not sufficient—if in fact it
is true—that MZ identified the challenged statements in communications with opposing
counsel. It is the court, not counsel, that must determine whether a prima facie showing
of actionable statements has been made. It is impossible to perform such a task without
knowing the exact statements on which liability is predicated. Moreover, if it is not
obvious from the face of the statements that they indeed conveyed an actionable meaning,
the plaintiff must clearly specify the meaning it contends was conveyed by them, and any

                                               15
extrinsic facts necessary to lend them that meaning—the equivalents, respectively, of
what are known in defamation as the “innuendo,” or defamatory gist or sting, and the
“inducement,” or factual context necessary to render facially neutral words defamatory.
(See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 555, pp. 811, 812.)
       MZ’s entire showing of a disclosure of confidential information consisted of the
following averments by one of its in-house attorneys: “[T]he review disclosed the scope
of Machine Zone’s investment in proprietary technology Machine Zone is developing for
use outside of its public product, [Game of War]. The review disclosed information
concerning the development stage of that technology. It also disclosed the number of
personnel working on that project. The review also contains certain quotes and
statements attributed to Machine Zone’s CEO which, while not literally accurate in all
respects, do disclose confidential aspects of the Company’s expectations for the team
working on Machine Zone proprietary technology, the value of the technology and the
motivations for developing that technology.”
       These averments were too vague and conclusory to satisfy MZ’s burden of making
a prima facie case of a breach of the nondisclosure agreement. They are far less specific
than averments that have elsewhere been found insufficient to sustain the analogous
contention that a defendant has misappropriated a trade secret. (See In re Providian
Credit Card Cases (2002) 96 Cal.App.4th 292, 305 et seq; Cypress Semiconductor Corp.
v. Maxim Integrated Products, Inc. (2015) 236 Cal.App.4th 243, 263 (Cypress).) The
lack of specificity cannot be justified, as MZ suggested below, by the supposed
sensitivity of the information in question. As counsel for Glassdoor points out, MZ could
have sought leave to file such materials under seal, as it did with the review itself. Any
notion that a specification of objectionable statements was too sensitive to be entrusted to
a sealed court record is belied by counsel’s professed communication of such a
specification to opposing counsel by e-mail.

                                             16
        The vagueness with which MZ framed its claims in the face of Glassdoor’s
repeated demands for specificity is redolent with the possibility that greater specificity
might disclose not valuable secrets but a lack of merit in the claims themselves. In
Cypress, we described approvingly another case holding that “a party was not entitled to
describe a trade secret so vaguely as to amount to an open-ended work in progress.”
(Cypress, supra, 236 Cal.App.4th at pp. 270-271, citing Perlan Therapeutics, Inc. v.
Superior Court (2009) 178 Cal.App.4th 1333, 1350.) Yet that is precisely what MZ did
here.
        After not revealing the substance of its claims, MZ added insult to injury by
accusing Glassdoor of “fail[ing] to understand the confidential information at issue” and
“miss[ing] the point” MZ had itself not identified. At the hearing on the motion to
compel, after counsel for Glassdoor noted that the only specific technology mentioned in
the review was a matter of public record, counsel for MZ responded, “[T]here are things
that are in that post that are confidential that are different than what he was just talking
about. Many things . . . . [T]he fact that they don’t appreciate what is confidential in
there doesn’t mean it’s not our confidential information.”
        The trial court tolerated this approach apparently because, once MZ moved to
place the entire review under seal, both attorneys were barred from disclosing any part of
its contents except under seal. (See Cal. Rules of Court, rule 2.551(c).) This provided
grounds for MZ’s attorney to proclaim a “big problem” with Greendoor “throwing
around statements from the posting,” leading to an admonition from the court that
“[t]here’s the whole issue of sealing, so be careful with that.” The court followed up in
its written order, chastising Glassdoor for a “cavalier attitude about violating the Rules of
Court by quoting the contents of a document that is the subject of a motion to seal.” Yet
the only specific statements alluded to at the hearing closely paralleled public reports
concerning MZ’s “language translator” and financing efforts. As MZ has finally revealed

                                              17
to this court, those statements are not claimed to constitute confidential information.
Nonetheless, MZ has cited the trial court’s admonition to us as part of an ad hominem
attack on Glassdoor.
       This was an intolerable mode of proceeding. In the first place, the request to seal
the review—and the order granting it—swept far too broadly. Much of Doe’s review
obviously implicates no confidential information, describing such conditions of
employment as workload, office sizes, perquisites of employment, and “work-life
balance.” MZ correctly concedes that employees are entitled by statute to publicize their
complaints about such matters. (See Lab. Code, § 232.5.) The record therefore provided
no basis to seal the review in its entirety, nor for the trial court’s boilerplate findings that
the sealing order was “narrowly tailored” and that “[n]o less restrictive means exist[ed] to
achieve and further Machine Zone’s interests in the confidential information.” (See Cal.
Rules of Court, rule 2.551(a)(4), (5); H. B. Fuller Co. v. Doe (2007) 151 Cal.App.4th
879, 894-899; NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th
1178, 1216-1218; Press-Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501,
510 [findings in support of closed proceedings must identify “overriding interest”
justifying the closure].) Nor did the court appear to take note of the requirements that a
sealing order “(A) Specifically state the facts that support the findings; and [¶] (B) Direct
the sealing of only those documents and pages, or, if reasonably practicable, portions of
those documents and pages, that contain the material that needs to be placed under seal.
All other portions of each document or page must be included in the public file.” (Cal.
Rules of Court, rule 2.550(e)(1), italics added.)
       The combination of MZ’s refusal to specify its claims and its grossly overbroad
motion to seal rendered it almost impossible for Glassdoor to effectively defend against
the subpoena other than by protesting, as it did, that the very vagueness of MZ’s showing
precluded an order compelling the requested discovery. A party to litigation is entitled to

                                               18
adequate notice of the issues he or she must meet in order to vindicate his or her interests.
To refuse to specify one’s claims while barring their target from even stating what he or
she understands them to be suggests less the American tradition of notice and opportunity
to be heard than the trial described by Franz Kafka, where Joseph K. is arrested and told
to report to court, neither the date or the charge is made known to him. He finds a clerk
in a crowded upstairs room, there are no signs, and he never sees the judge.
       In the similar context of trade secret litigation, the plaintiff is required by statute,
prior to the commencement of discovery on the merits, to “identify the trade secret with
reasonable particularity subject to any orders that may be appropriate under Section
3426.5 of the Civil Code.”4 (Code Civ. Proc., § 2019.210.) This requirement serves a
fourfold purpose: “ ‘First, it promotes well-investigated claims and dissuades the filing
of meritless trade secret complaints. Second, it prevents plaintiffs from using the
discovery process as a means to obtain the defendant’s trade secrets. [Citations.] Third,
the rule assists the court in framing the appropriate scope of discovery and in determining
whether plaintiff’s discovery requests fall within that scope. [Citations.] Fourth, it
enables defendants to form complete and well-reasoned defenses, ensuring that they need
not wait until the eve of trial to effectively defend against charges of trade secret
misappropriation.’ ” (Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132
Cal.App.4th 826, 834, quoting Computer Economics, Inc. v. Gartner Group Inc.
(S.D.Cal. 1999) 50 F.Supp.2d 980, 985.) All but the second concern are equally
applicable in the present context, and that factor too has a parallel in that such a


       4
         The cross-referenced statute, which is part of the Uniform Trade Secrets Act,
requires the trial court to “preserve the secrecy of an alleged trade secret by reasonable
means, which may include granting protective orders in connection with discovery
proceedings, holding in-camera hearings, sealing the records of the action, and ordering
any person involved in the litigation not to disclose an alleged trade secret without prior
court approval.” (Civ. Code, § 3426.5.)

                                               19
requirement discourages the use of the litigation process for a collateral advantage or
purpose, such as punishing critics or intimidating potential critics.
       For the foregoing reasons, MZ’s showing before the trial court fell well short of
establishing a prima facie case against Doe for violation of the nondisclosure agreement.
We do not rest our disposition on that fact, however, for two reasons. First, before today
no California court has held that a party in MZ’s position is obliged to specify the
statements complained of and the circumstances making them actionable. Second, in its
filings in this court MZ has finally identified the statements it claims to be actionable and
the confidential information it claims they disclosed. As will appear, we have concluded
that the statements thus identified have not been shown to be capable of bearing the
meaning MZ attributes to them.
   V. Prima Facie Showing
       A. Introduction
       We turn to the question whether MZ has made a prima facie showing that Doe’s
review violated the nondisclosure agreement attached to the complaint.5 It provides in
relevant part as follows: “Confidentiality Obligations. In the course of my Company
employment, I will learn of or have disclosed to me various ‘Confidential Information’.
Confidential Information is any information designated or labeled as ‘confidential’ or
‘proprietary’ or which is of the type one would reasonably expect a business to maintain

       5
         We have not overlooked Krinski’s requirement that efforts be made to notify the
speaker of the attempt to discover his or her identity. The issue receives little attention
from the parties, and no declaration was submitted to establish the fact of notice.
However the record includes an e-mail exchange in which counsel for Glassdoor told
counsel for MZ that Doe had been notified. Since neither party contests the point—and
since John Doe can suffer no prejudice in light of our disposition—we treat it as
established that he received adequate notice.

     Glassdoor also contends that MZ failed to make a prima facie showing it was
damaged by Doe’s review. We find it unnecessary to address this contention.

                                             20
in confidence. During and after the term of my employment, I will not disclose to any
‘unauthorized persons,’ or use for any ‘unauthorized purposes,’ any Confidential
Information which I learn or receive in connection with my employment without the
written consent of an officer of Company. These duties do not apply to Confidential
Information which is or becomes publicly known through no action or fault of my
own . . . .” (Fns. omitted.)
       A footnote gives examples of information covered by the agreement:
“Confidential Information includes, for example, technical information such as know-
how, formulae, computer software, logic design, schematics, and manufacturing
processes; business information such as information about costs, prices, profits, markets,
sales, customers, and vendors; personnel information such as evaluations, salary and
compensation data, and private phone numbers; and information relating to innovative
activities, such as inventions, research projects, plans for future development, and patent
strategy. Confidential Information includes confidential or proprietary information of a
third party to which Company owes a duty of confidentiality or non-use and may also
include Work Product (as defined below). Although certain information or technology
may be generally known in the relevant industry, the fact that Company uses it, and how
Company uses it, may not be known, and is therefore Confidential Information.”
       We may assume for present purposes that if Doe’s review disclosed any
information covered by the agreement, the disclosure was for unauthorized purposes, and
was made to unauthorized persons. The question as thus framed is, did MZ made a prima
facie showing that Doe’s review disclosed information falling within the above
provisions? This query breaks down into four subsidiary questions: First, what language
in the review is alleged to have violated the agreement? Second, what information is
alleged to have been disclosed by that language? Third, what showing has been made



                                             21
that such information was actually conveyed to readers? And fourth, what showing has
been made that the information thus disclosed fell within the terms of the agreement?
       B. Alleged Disclosures
          1. Existence of Platform Team
       Although MZ failed in the trial court to adequately specify the allegedly actionable
statements (see pt. IV, ante), it has been more forthcoming in its filings in this court, in
which it states that the offending statements are those referring to MZ’s “platform team.”
Doe made three such statements:
       “Terrible work-life balance, except for the platform team, which do not know what
to work on.”
       “The senior management lost directions. The company has invested heavily in the
platform team (there are 70-80 engineers). However, after one year, nothing has been
done by that team.”
       “The CEO said in the team meeting: I don’t expect products and revenue from the
platform team. I only want you can show demos. The platform is only for attracting
investments from VCs.” (Italics added.)
       According to MZ, these statements revealed that MZ was in the process of
developing a technology which was then unknown to the world but which it has now
unveiled as “a real time data transmission platform branded RTplatform™.” Prior to its
“rebrand[ing],” it asserts, its “public-facing business had been solely mobile gaming
apps. But on April 4, 2016, Machine Zone publicly announced that it had developed a
stand-alone real-time platform technology that enables the exchange of data between
billions of endpoints worldwide virtually simultaneously.” It is this new “real-time
platform technology,” according to MZ, that Doe prematurely disclosed by his statements
about MZ’s “platform team.”



                                              22
       The first problem with this contention is that MZ presented no evidence that Doe’s
mere allusions to a “platform team” would tell readers anything about a “real time data
transmission platform” or a “stand-alone real-time platform technology.” In the absence
of such evidence, it is impossible to see how a trier of fact could find that the review
actually conveyed the meaning MZ attributes to it. As used in the computing world,
“platform” appears to be a term of great generality and flexibility, with a wide range of
meanings that vary with context. (See Computing platform – Wikipedia, the free
encyclopedia <https://en.wikipedia.org/wiki/Computing_platform> (as of Mar. 8, 2017).)
In the context of computer hardware, “platform” refers to the “[h]ardware environment
that supports the running of a computer system.” (Glossary of Computer Related Terms,
<http://www.math.utah.edu/~wisnia/glossary.html#p> (as of Mar. 8, 2017); see
Supported Operating System and Hardware Platform Combinations
<http://cng.seas.rochester.edu/CNG/docs/supported.html> (as of Mar. 8, 2017).) But the
term can refer to either “hardware or software used to host an application or service.”
(What is platform? – Definition from WhatIs.com,
<http://searchservervirtualization.techtarget.com/definition/platform> (as of Mar. 8,
2017).) “Platform” has elsewhere been used to describe “a common set of core assets” to
be utilized by a “family of products.” (Platform engineering | Decision Driven®
Solutions Blog <https://decisiondriven.wordpress.com/2008/06/11/platform-
engineering/> (as of Mar. 8, 2017).) One major technology company describes its
platform as the “infrastructure to power our own products and services.” (The Google
Cloud Platform Team: rebuilding Google technology to power the world – Google
Careers <https://www.google.com/intl/en/about/careers/lifeatgoogle/chris-elliott-cloud-
platform.html> (as of Mar. 8, 2017).) And in the specific context of computer gaming,
online examples are readily found where “game platform” or “gaming platform” refers to
a hardware or software environment in which games may be run. (See, e.g., Steam, The

                                             23
Ultimate Online Game Platform <http://store.steampowered.com/about/> (as of Mar. 8,
2017); Online Gaming Platform – iCore <http://www.comtradegaming.com/online-
gaming-platform-icore/> (as of Mar. 8, 2017); Gameforge Live | Online Gaming Platform
<http://gfl.gameforge.com/> (as of Mar. 8, 2017); Comparison of gaming platforms -
Wikipedia <https://en.wikipedia.org/wiki/Comparison_of_gaming_platforms> (as of
Mar. 8, 2017).)
      We do not cite these web pages as affirmative evidence of the understanding a
reader would actually form based on Doe’s use of the term “platform.” Rather they serve
to highlight MZ’s critical failure to make any showing on that subject. The record
provides no basis whatever for a finding that Doe’s mere allusions to a platform team
would tell the public anything more than that a group of MZ workers were charged with
developing the infrastructure for future games, or perhaps for some application or family
of applications of unknown type. We fail to see how this vague information could be
news, let alone competitively advantageous, to any student of the industry. It was
incumbent upon MZ to make a showing sufficient to sustain a finding that Doe’s
references to a “platform team” conveyed confidential information to persons outside the
company. No such showing appears.
      Further, it was hardly a secret that MZ was working on some sort of “platform.”
Glassdoor presented a job listing, apparently posted by MZ less than three weeks after
Doe’s review appeared, in which MZ advertised for a “Senior Machine Learning
Engineer” to be assigned to “Machine Zone’s platform group.” The group was said to be
engaged in “creating the next generation communication platform where players from
around the world communicate seamlessly in real-time and across languages.” (Italics
added.) Web archives indicate that MZ had been advertising publicly for positions in the
areas of “Data Platform” and “Platform Engineering” since at least June 2014—a full
year before Doe posted his review. (Careers | Machine Zone (Jun. 5, 2014)

                                           24
<https://web.archive.org/web/20140605200645/http://www.machinezone.com/careers/>
(as of Mar. 8, 2017).)6
       MZ obliquely suggests that Doe disclosed the supposedly confidential fact that
MZ’s platform technology would have “a variety of applications beyond gaming.”
Again, we see nothing in the review that would convey such an intimation to readers, but
in any event MZ made no secret of its intention to extend its technology beyond gaming.
A savvy reader could infer such an intention at least as early as August 2013, when CEO
Leydon, in an interview discussing an early version of Game of War, described its
multiplayer, multilingual technology in terms that could easily suggest applications
outside the gaming world.7 In a March 2015 interview, some three months before Doe’s
review, Leydon was quite explicit about this potential, describing this feature of the game

       6
         We asked the parties to address the question whether this court might and should
take judicial notice of the cited webpage and those discussed below. Both parties
answered that question affirmatively.
       7
           “When we were building the server infrastructure to handle a lot of players, the
translation came out of the problem of having all of these players together from all over
the world with the need to communicate. When you’re able to connect all of these people
together in a real-time environment where communication is just so important, it became
obvious that if we were going to put everyone into this one environment, we were going
to have issues if they couldn’t talk to each other. [¶] . . . [¶] . . . [I]t got to the point
where, during the beta, we had problems where it shutdown because of a bug and people
would freak out because they couldn’t talk to their friend anymore. That was the light-
bulb moment. When people were relying on it to talk to their friends, friends that they
couldn’t have any other way, that’s when I realized how very necessary this really is. . . .
[¶] . . . [¶] . . . Our goal is to network all of those people together, networking all of the
like-minded people together into one place. If you think about it, that’s a really powerful
thing, that’s an incredible amount of leverage. Normally, if I have a Polish player who is
really into this game, I’d have to go out and build a Polish server and fill it with Polish
people for him to play with. Game of War doesn’t have to do that. That’s a really
powerful thing. Hopefully we can network all of these like-minded people together into
one place.” (Insider Q&A: Machine Zone’s Gabriel Leydon | SocialTimes (Aug. 6,
2013) <http://www.adweek.com/socialtimes/insider-qa-machine-zones-gabriel-
leydon/541576?red=im> (as of Mar. 8, 2017).) (Italics added.)

                                             25
as “ ‘closer to a social network than it is a video game’ ” and as “ ‘the largest real-time
concurrent interactive application ever built,’ ” adding, “ ‘There’s nothing even close to
it.’ ” (One Nerd to Rule Them All (With Lots of Kate Upton) - Bloomberg Business
(Mar. 5, 2015) <http://www.bloomberg.com/graphics/2015-game-of-war/> (as of Mar. 8,
2017).) The article described Leydon as “intend[ing] to focus on what his new
networking technology can accomplish outside the gaming world. He says dozens of
companies have asked to license Machine Zone’s translation engine. Its applications, he
says, span beyond gaming and into finance, logistics, social networking, and data
analysis. [¶] ‘We’re a technology company,’ he says. ‘We’re not really a game
company. What we accomplished here is actually where we’re going next. Getting so
many devices to participate in the same experience at the same time—that’s going to be
the most important part of the business.’ ” (One Nerd to Rule Them All (With Lots of
Kate Upton) - Bloomberg Business (Mar. 5, 2015) <http://www.bloomberg.com/
graphics/2015-game-of-war/> (as of Mar. 8, 2017), italics added.) These statements led
at least one industry commentator to speculate on specific non-game applications for the
technology. (Machine Zone (MZ) : A $4 Billion Dollar Unicorn That Walks The Walk
(Mar. 24, 2015) <http://glomoinvesting.com/machine-zone-the-4-billion-unicorn-that-
walks-the-walk/> (as of Mar. 8, 2017.)
       In sum, the record contains no support for a finding that Doe’s mere references to
a “platform team” would tell the public anything it had not heard from MZ’s own CEO.
           2. Size of Team
       MZ emphasizes Doe’s statement that “[t]he company has invested heavily in the
platform team (there are 70-80 engineers).” While it may be possible that this was
confidential business information, MZ again failed to present any evidence to that effect.
This is more than a technical point, for it is also possible that this or equivalent
information was accessible to the public by, for instance, monitoring MZ’s job listings.

                                              26
(See Cypress, supra, 236 Cal.App.4th 243, 250-251, 253, 263.) It is conceivable that the
size of the team, coupled with some other knowledge, would tell readers something that
was not yet publicly known. However, if that is the case, MZ failed to demonstrate it.
Accordingly, MZ failed to make a prima facie showing that Doe breached the
nondisclosure agreement by alluding to the number of engineers on the platform team.
            3. CEO Statements
       An in-house attorney for MZ declared that Doe’s review “quoted Machine Zone
CEO Gabriel Leydon’s confidential internal statements concerning th[e undisclosed]
technology.” It is true that the review purported to quote or paraphrase two statements
made by the CEO concerning his expectations for the platform team. But again those
statements appear to reveal nothing about any “undisclosed technology.” Doe apparently
meant to portray the CEO as less interested in actual progress than in projecting the
appearance of progress to potential investors. Given the tenor of Doe’s depiction, it is no
surprise that MZ’s declarant described Doe’s account as “not literally accurate in all
respects.” Because this suggests that the statements were false, at least in part, we asked
the parties to brief the question whether Doe’s review could be found to violate the
nondisclosure agreement if “(1) the report did not accurately recapitulate those
statements, or (2) the statements as reported did not accurately describe Machine Zone’s
internal policies or other information covered by the nondisclosure agreement?”
       MZ’s response to this query does not meet our question. Here again is what Doe
wrote: “The CEO said in the team meeting: I don’t expect products and revenue from
the platform team. I only want you can show demos. The platform is only for attracting
investments from VCs.”8 And here is MZ’s description of that sentence: “He also
revealed internal discussions that Mr. Leydon did not ‘expect products and revenue from


       8
           By “VCs,” Doe undoubtedly meant suppliers of venture capital.

                                            27
the platform team,’ but instead saw the technology as a key investment for the company,
urging the platform team to focus on scaling up the technology to ‘show demos’ of
RTplatform’s™ full capabilities rather than rolling out and attempting to monetize the
technology piecemeal.” (Italics added.) According to MZ, Doe’s statements also
“informed readers that . . . the platform team had not yet developed a saleable product or
achieved revenues (disclosing the project’s stage of development),” and “gave industry
rivals inside knowledge on the speed and manner of the RTplatform™
development . . . .”
       It is unclear what MZ means by this wholesale rewriting of Doe’s statements. It
might be understood as an attempt to describe what MZ believes was conveyed by Doe’s
actual words—the equivalent of the innuendo in defamation. If so it fails because the
record supplies no basis to believe that a reader of Doe’s review would understand it to
mean what MZ says it means. Doe said nothing about RTplatform, monetization,
revenues, or key investments. Or perhaps MZ’s revised version of Doe’s statements is a
description of what it contends the CEO actually said. If so, the divergence between the
statements attributed to him by Doe and those attributed by MZ only sharpens the point
we asked MZ to address: Can a false report of internal company dealings violate a
nondisclosure agreement?
       The gist of Doe’s account was that whatever the platform team was working on,
the CEO told its members to focus their efforts on creating demos to assist in raising
venture capital. Doe may have intended to accuse the platform team of generating—and
the CEO of ordering it to generate—“vaporware,” i.e., “[a] piece of software or other
product for use in computing which, despite being publicized or marketed, either does not
exist or has not (yet) been developed commercially.” (vapourware | vaporware, n.:
Oxford English Dictionary, <http://www.oed.com/view/Entry/243248> (as of Mar. 8,
2017); see 2 New Shorter Oxford English Dict. (3d ed. 1993), p. 3546 [“software that as

                                            28
yet exists only in the plans of publicity material of its developers”].) This is consistent
with Doe’s statements—not cited by MZ as violations of the disclosure agreement—that
“Management spreads unreal information to both outside VC’s and employees,” that
everyone is working too hard “except for the platform team, which do not know what to
work on,” that “senior management” has “lost direction[],” and that MZ was guilty of
“telling the investors and employees the unreal information” and of “cheating.”
       Subsequent events suggest that Doe’s interpretation of MZ’s actions and motives
was simply wrong. MZ was indeed developing a new product, which it launched—
together with a repackaging of its corporate image and mission—a mere 10 months after
Doe accused it of accomplishing nothing of substance. The question thus remains:
Insofar as an employee’s statement about an employer’s internal activities is untrue, can
it ever violate a nondisclosure agreement? We think the answer is obviously negative.
The essence of “information,” as that term is used in this context, is “Knowledge
communicated concerning some particular fact, subject, or event; that of which one is
apprised or told; intelligence, news.” (7 Oxford English Dict. (2d ed. 1989), p. 944,
italics added.) Similarly, “confidential” means imparted in confidence, i.e., with the
expectation that the matter communicated will not be further disclosed. “Confidential” is
derived from “confide,” which means to “[t]ell someone about a secret or private matter
while trusting them not to repeat it to others.” (confide - definition of confide in English |
Oxford Living Dictionaries <https://en.oxforddictionaries.com/definition/confide> (as of
Mar. 8, 2017), italics added.) The agreement here clearly used these terms in this sense;
the confidentiality provision opens with the recital, “In the course of my Company
employment, I will learn of or have disclosed to me various ‘Confidential Information.’ ”
       In sum, confidential information consists of facts that have been communicated
with an expectation of nondisclosure. False statements do not convey “facts” or
“knowledge,” but the opposite. Their contents are not “learn[ed]” or “disclosed,” but

                                             29
born of error, or perhaps malice, in the speaker’s own mind. If Doe had stated that MZ
was laundering funds for a criminal syndicate, MZ might have a tort claim; but it would
not have a claim for disclosure of confidential information unless the company was, in
fact, laundering funds.
       This is not to suggest that an employee can defeat such a suit merely by showing
that his or her statements were in some part untrue. It is possible for a statement to be
false in part but still to convey true information, and if the information thus conveyed is
confidential, the statement can be found to violate a nondisclosure agreement even if it is
in some respects false. Here, however, MZ has never attempted to separate the portions
of Doe’s review that are “not literally accurate in all respects” from those that might have
conveyed true, and confidential, information. An employer cannot establish a claim for
breach of a nondisclosure agreement unless it is prepared to prove, and does prove, that
the defendant disclosed actual confidential information, i.e., that his or her statements
were, in some relevant degree, true.9 Nothing in this record would sustain a finding that
the CEO’s statements—reported by Doe inaccurately, according to MZ—had this effect.
       MZ’s hesitation on this point may be understandable, because Doe’s supposed
disclosures do not cast MZ in a favorable light. But MZ cannot be excused from the
requisite showing merely because proving a prima facie case might be embarrassing to it.
If Doe accurately disclosed company policy, or the CEO’s statements regarding that
policy, it was incumbent upon MZ to present evidence to that effect. Instead it denied the
accuracy of Doe’s report without identifying any real confidential information it might be


       9
         After all, the function of a nondisclosure agreement is to prevent competitors
from learning the company’s actual secrets. Information that falsely represents the
company’s activities may inflict some other kind of injury such as damage to the
company’s reputation, but it is difficult to see how it would diminish the competitive
advantage of secrecy. From a competitive standpoint, it would seem if anything to
constitute disinformation on which competitors would rely at their peril.

                                             30
understood to have disclosed. MZ therefore failed to establish a prima facie case
predicated on Doe’s account of the CEO’s statements.
                                       DISPOSITION
         MZ has failed to make a prima facie showing that anything in Doe’s review
disclosed confidential information in violation of the nondisclosure agreement. Let a
peremptory writ issue directing respondent court to set aside its order of September 15,
2015, and issue a new order denying the motion to compel. Glassdoor will recover its
costs.




                                            31
                                       ______________________________________
                                                  RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           GROVER, J.




Glassdoor, Inc. v. Superior Court (Machine Zone, Inc.)
H042824




                                         32
Trial Court:                                  Santa Clara County Superior Court
                                              Court No.: CV282558

Trial Judge:                                  The Honorable
                                              Mary E. Arand


Attorneys for Petitioner                      Seubert French Frimel & Warner LLP
Glassdoor, Inc.:
                                              William J. Frimel
                                              Rebecca L. Epstein




Attorneys for Real Party in Interest          Arnold & Porter LLP
Machine Zone, Inc.:
                                              Michael A. Berta
                                              Sean M. SeLegue


                                              Sean Morris




Glassdoor, Inc. v. Superior Court (Machine Zone, Inc.)
H042824

                                         33
