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United States v. Huawei Device Co., Ltd.

United States District Court, W.D. Washington, Seattle

May 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
HUAWEI DEVICE CO., LTD., and HUAWEI DEVICE USA, INC., Defendants.

          ORDER TO DISCLOSE

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This matter is before the Court on the Government's Motion Regarding the Discoverability of a Particular Document. Dkt. #43. In the course of pre-trial discovery, the government has withheld a single memorandum it sent to T-Mobile-the alleged victim in this case. The government believes that the document is not discoverable and asks the Court to affirm that position. The Court finds that the document is discoverable, and the government is directed to produce it.

         II. BACKGROUND

         Defendants are alleged of stealing trade secrets from T-Mobile. As the victim, T-Mobile may be entitled to “full and timely restitution as provided in law.” 18 U.S.C. § 3771(a)(6); see also, 18 U.S.C. § 3663A (requiring restitution for specified offenses).[1] The amount of restitution is limited to a victim's actual losses. See United States v. Beecroft, 825 F.3d 991, 996 (9th Cir. 2016). Therefore, the government and T-Mobile have discussed the issue of restitution in this case. “T-Mobile provided the government with a memorandum outlining its position” and the government “wrote a responsive memorandum to T-Mobile.” Dkt. #43 at 2-3. The government has produced T-Mobile's memorandum to Defendants. The government has not produced its own memorandum, asserting that it contains only confidential legal analysis that need not be disclosed to Defendants in this action. Id. at 4.

         III. DISCUSSION

         A. Ex-Parte, In Camera Review

         Defendants complain of the process through which this matter is before the Court, asserting that they should be entitled to review the document at issue before the Court decides discoverability so that Defendants may better tailor their arguments. Dkt. #47 at 2-3. But, as the government notes, within the Ninth Circuit, “[i]f the prosecution is uncertain about the materiality of information within its possession, it may submit the information to the trial court for an in camera inspection and evaluation.” Dkt. #43 at 3 (quoting United States v. Cadet, 727 F.2d 1453, 1467-68 (9th Cir. 1984) and citing additional cases). Defendants point to no applicable contrary authority. Regardless, the issue is ultimately moot as the Court finds that the government must produce the memorandum.

         B. Discoverability

         While much of the parties' briefing concerns whether the memorandum is Brady[2] material which must be disclosed, the Court begins its analysis by considering the issue under the relevant Federal Rules of Criminal Procedure:

Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:
(i) the item is material to preparing the defense;

Fed. R. Crim. P. 16(a)(1)(E)(i). Rule 16 provides for broad discovery because “[m]ateriality is a low threshold.” United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013). The threshold is satisfied if the document “would have helped . . . prepare a defense” or could cause “a defendant to completely abandon a planned defense and take an entirely different path.” Id. (quoting United States v. Doe, 705 F.3d 1134, 1151 (9th Cir. 2013)) (quotation marks omitted).

         Here, there is little question that having the prosecution's legal analysis related to a portion of the case would aid the defense in determining its strategy and is therefore material. The government expresses concern with such an approach, albeit in a slightly different context:[3]“a prosecutor would need to turn over every prosecution memorandum that discussed a weakness in the case. [Defendants'] position is clearly not the law-and for good reason-because it would unduly chill ...


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