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U.S. District Judge James Ware said Monday he’d consider the unusual step of allowing expert depositions in a criminal trade secrets case. His comments threw a new wrinkle into the government’s second-ever prosecution under the 1996 Economic Espionage Act. Though depositions are rarely used in criminal cases, Ware suggested that they may be the best way to sort through a 3,200-page document in which the government outlines the trade secrets it says were stolen. Attorneys for defendants Fei Ye and Ming Zhong were in court to ask Ware to hold some kind of pretrial hearing to decide what would meet the federal definition of a trade secret before a jury takes a crack at it. Ye and Zhong, both engineers, were indicted in December 2002 for economic espionage, conspiracy and possession of stolen trade secrets. The pair were arrested at San Francisco International Airport, waiting to catch a flight to China. They were allegedly carrying documents and equipment from Sun Microsystems Inc., Transmeta Corp., NEC Electronics Corp. and Trident Microsystems Inc. The pair are accused of stealing trade secrets to establish a competing venture in China. Defense attorneys Paul Meltzer and John Williams, of Manchester, Williams & Seibert, argued that before the government can prove espionage or even theft, it will need to show that the four alleged victims did in fact lose trade secrets. They argued that the court, not a jury, could best do that analysis. “To the extent you can narrow the amount a jury has to look, that is a helpful process,” Ware said. “I am not going to close my mind that maybe there is something that can be done to limit information.” But Assistant U.S. Attorney Ross Nadel said the government has already supplied the defense with information explaining the trade secrets it contends were stolen, including explanatory affidavits from experts at the victim companies. Nadel argued that the court couldn’t just borrow from the civil code to meet defense demands. “They are requesting a pretrial hearing so they can move in summary judgment like in a civil case,” Nadel complained. “There is no proceeding in a criminal case allowing for summary judgment to weed out counts.” Nadel compared deposing trade secrets experts before trial to deposing weapons experts in an explosives case. But Ware said determining if something is a trade secret is not as simple as determining if something will blow up. “It’s not whether something is stamped as a trade secret but whether it is a trade secret,” Ware said. “I don’t think that trade secrets are subject to objective verification.” Harold McElhinny, a patent litigation partner with Morrison & Foerster not involved in the case, said depositions would be advantageous to the defense. “Depositions are sometimes taken in criminal cases but it’s extremely unusual. In a criminal case, from a defense point of view, discovery is the name of the game,” McElhinny said. “You can see why it would be particularly helpful in a trade secrets case. The defendants are always trying to pin down the exact nature of the trade secret alleged.” Local prosecutors had to obtain permission from Main Justice before invoking the Economic Espionage Act. Under the act, the government must show the pair stole trade secrets with the intention of benefiting a foreign government or its agent. Prosecutors need not prove that the Chinese government was a co-conspirator.

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