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1139

Confidentiality

Victims of trade secret thefts are often faced with a dilemma when deciding whether to report the matter to law enforcement authorities. Generally, victims do not want the thief to go unpunished but suspect that if they report the matter, the trade secret will be publicly aired during criminal prosecution. In drafting the EEA, Congress was clearly concerned about this issue and, to encourage reporting, sought to preserve the confidentiality of a trade secret, if possible, even after the return of the indictment. Section 1835 provides that the court "shall enter such orders and take such action as may be necessary and appropriate to preserve the confidentiality of trade secrets, consistent with the requirements of the Federal Rules of Criminal and Civil Procedure, the Federal Rules of Evidence, and all other applicable laws."

Note that courts can limit the disclosure of information to the public even during the trial without necessarily violating the defendant's right to a public trial under the Sixth Amendment. While the right to a public criminal trial was incorporated into the Constitution by the Sixth Amendment, the right is not absolute and may be limited in certain circumstances. Richmond News Papers, Inc. v. Virginia, 448 U.S. 555, 599-600 (1980) (Stewart, J. concurring); see also Gannett v. Depasquale, 443 U.S. 368, 422-33 (1979) (Marshall, J., concurring in part and dissenting in part) (tracing the history of the right to a public trial and citing cases where that right has been limited); State ex rel. La Crosse Tribune v. Circuit Court, 340 N.W. 2d 460, 466-67 (Wis. 1983) (citing State ex rel. Ampco Metal, Inc. v. O'Neil, 78 N.W. 2d 921 (Wis. 1956) (both discussing inherent power of a court to limit the public nature of trials).

At least one circuit court has recognized the power of the district court to restrict, at least partially, access to that portion of the proceeding which would reveal trade secrets. In Stamicarbon, N.V. v. American Cyanamid Co., 506 F.2d 532 (2d Cir. 1974), on appeal of a criminal contempt conviction, the court held that based on a compelling claim, a district court may partially limit the public's access if the court determines that (1) a party is likely to suffer irreparable injury if access to the proceedings is not limited, and (2) protection of the party's secrets can be achieved "with minimal disruption of the criminal proceedings." Id. at 540.

[cited in USAM 9-59.100]