Victims of trade secret thefts are often faced with a dilemma when
deciding whether to report the matter to law enforcement authorities.
victims do not want the thief to go unpunished but suspect that if they
the matter, the trade secret will be publicly aired during criminal
In drafting the EEA, Congress was clearly concerned about this issue and, to
encourage reporting, sought to preserve the confidentiality of a trade
if possible, even after the return of the indictment. Section 1835 provides
the court "shall enter such orders and take such action as may be necessary
appropriate to preserve the confidentiality of trade secrets, consistent
requirements of the Federal Rules of Criminal and Civil Procedure, the
Rules of Evidence, and all other applicable laws."|
Note that courts can limit the disclosure of information to the
even during the trial without necessarily violating the defendant's right to
public trial under the Sixth Amendment. While the right to a public
trial was incorporated into the Constitution by the Sixth Amendment, the
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.
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
a public trial and citing cases where that right has been limited); State ex
La Crosse Tribune v. Circuit Court, 340 N.W. 2d 460, 466-67 (Wis. 1983)
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
which would reveal trade secrets. In Stamicarbon, N.V. v. American Cyanamid
506 F.2d 532 (2d Cir. 1974), on appeal of a criminal contempt conviction,
court held that based on a compelling claim, a district court may partially
the public's access if the court determines that (1) a party is likely to
irreparable injury if access to the proceedings is not limited, and (2)
protection of the party's secrets can be achieved "with minimal disruption
criminal proceedings." Id. at 540.
[cited in USAM 9-59.100]