Glassdoor, Inc. v. Superior Court of Santa Clara County (9 Cal. App. 5th 623, 2017)

Opinion

RUSHING, P. J.

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. (Machine Zone or 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. Entitled “A Scandal,” the review commences by identifying three “Pro’s” of employment at MZ: “Free food, free massages, [and a] spacial [s/c] 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.

“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.”

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 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.”

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 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 [72 Cal.Rptr.3d 231] (Krinsky), citing Talley v. California (1960) 362 U.S. 60, 64 [4 L.Ed.2d 559, 80 S.Ct. 536], McIntyre v. Ohio Elections Comm’n (1995) 514 U.S. 334, 341-342 [131 L.Ed.2d 426, 115 S.Ct. 1511], and Watchtower Bible & Tract Soc. of N.Y., Inc. v. Village of Stratton (2002) 536 U.S. 150, 166 [153 L.Ed.2d 205, 122 S.Ct. 2080].) 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 [103 Cal.Rptr.3d 426].)

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 [171 Cal.Rptr.3d 799], quoting Rancho Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1541 [81 Cal.Rptr.2d 274] [“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 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) 2011 PA Super 3 [12 A.3d 430, 437, fn. 9] [dictum; standing not raised and not subject to determination sua sponte]; Trawinski v. Doe (N.J.App.Div., June 3, 2015) 2015 WE 3476553, p. *5; In re Subpoena Duces Tecum to America Online, Inc. (2000) 52 Va.Cir. 26 (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 Assn. 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 [42 Cal.Rptr.3d 79] (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 anonymity. (Matrixx, at pp. 880-881, citing AOL, 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 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 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. 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 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 [113 L.Ed.2d 411, 111 S.Ct. 1364].) It is not, however, among the jurisdictional constraints arising from the constitutional requirement of a “case[]” or “contro vers [y].” (U.S. Const., art. Ill, § 2; see Enterline v. Pocono Medical Center, supra, 751 FSupp.2d 782, 784-785; Singleton v. Wulff (1976) 428 U.S. 106, 115-116 [49 L.Ed.2d 826, 96 S.Ct. 2868].) 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. (Ibid.)

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. N. A. A. C. P. v. Alabama (1958) 357 U.S. 449, 459 [2 L.Ed.2d 1488, 78 S.Ct. 1163] [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 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 (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 [79 Cal.Rptr.3d 407] (conc. opn. of McAdams, J.) (Tendler).) 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 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 & [as of Mar. 10, 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 [as of Mar. 10, 2017]; see Supported Operating System and Hardware Platform Combinations [as of Mar. 10, 2017].) But the term can refer to either “hardware or software used to host an application or service.” (What is platform? Whatls.com [as of Mar. 10, 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 [as of Mar. 10, 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 [as of Mar. 10, 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 Ultimate Online Game Platform [as of Mar. 10, 2017]; Online Gaming Platform, iCore [as of Mar. 10, 2017]; Gameforge Live, Online Gaming Platform [as of Mar. 10, 2017]; Comparison of gaming Platforms, Wikipedia [as of Mar. 10, 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. (Machine Zone (June 5, 2014) [as of Mar. 10, 2017].)

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. 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 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) [as of Mar. 10, 2017].) The article described Leydon as “intending] 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: ” (Ibid., italics added.) These statements led at least one industry commentator to speculate on specific nongame applications for the technology. (Machine Zone (MZ): A $4 Billion Dollar Unicorn That Walks the Walk (Mar. 24, 2015) [as of Mar. 10, 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. (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.” And here is MZ’s description of that sentence: “He also revealed internal discussions that Mr. Leydon did not ‘expect products and revenue from 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.” (Oxford English Dictionary Online [as of Mar. 10, 2017]; see 2 New Shorter Oxford English Diet. (3d ed. 1993) p. 3546 [“software that as 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 Diet. (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 “[tjell someone about a secret or private matter while trusting them not to repeat it to others.” (Oxford Living Dictionaries Online [as of Mar. 10, 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 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. 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 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.

Premo, J., and Grover, J., concurred.

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 part IV., post, concerning the overbreadth of the original sealing order.

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

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.

The cross-referenced statute, which is part of the Uniform Trade Secrets Act (Civ. Code, § 3426.5 et seq.), 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 healings, sealing the records of the action, and ordering any person involved in the litigation not to