Trust us. We’re the government.
That argument did not sit well with U.S. Magistrate
Judge Clifford Shirley Tuesday as he considered whether to grant
federal prosecutors’ request to block the public from seeing
evidence in the upcoming trial of two engineers accused of trying to
steal trade secrets from Goodyear Tire & Rubber Co.
“What you’re telling me, it sounds to me, is
‘we’ll tell you what evidence contains trade secrets,’” Shirley
said. “How do I know what exhibits come under that umbrella?”
The issue arose when Assistant U.S. Attorney
Thomas Dougherty asked Shirley to bar the public display of seven
photographs authorities allege Greenback engineers Clark Alan
Roberts, 46, and Sean Edward Howley, 38, snapped of a device at
Goodyear’s plant in Topeka, Kan., in May 2007.
The pair are accused in a federal indictment of
tricking their way into the inner sanctum of Goodyear’s plant to
secretly snap photos of a device used to make massive off-the-road
tires the pair were trying to help their Wyko Tire Technology bosses
in Greenback craft for a firm in China. The duo is charged under the
Economic Espionage Act, which makes it a federal crime to steal
The Greenback engineers allegedly convinced
Goodyear officials they wanted to tour the Kansas plant to take a
look at Wyko equipment used by Goodyear that was in need of repair.
Roberts, the indictment alleges, served as look-out while Howley
used his phone to take shots of the device Goodyear used to make its
Dougherty insisted he and fellow prosecutor Greg
Weddle did not need to convince Shirley the photographs actually
contain trade secrets to get his approval to cloak the images in
“There’s no requirement that we prove they contain
trade secrets,” he said.
But defense attorney Stephen Ross Johnson
countered it was up to a jury to decide if the photographs show
trade secrets. He and fellow defense attorneys Tom Dillard and Doug
Trant contend they do not.
“(Without a hearing and proof) there’s no pretrial
determination of what protected information there is except what
(the government) says it is,” Johnson said. “That really is an
unfair suggestion to the jury this is some kind of confidential
material when that is the very issue the jury is to determine. We
believe the government has the burden here to establish this
material contains trade secrets … by clear and convincing evidence.”
It is now up to Shirley to decide if prosecutors
must make a case to back up their claims of trade secrets before he
decides whether to actually seal exhibits in the case. He’ll need to
work fast. The pair are set to be tried in March.