United States v. Liew, — F.3d —, 2017 WL 1753269 (9th Cir. May 5, 2017): Trade-secret theft counts reversed and case remanded for in camera examination of potential Brady material
Being prosecuted in federal court is bad enough – but imagine being sandwiched between a civil lawsuit and a criminal prosecution, both addressing the same conduct. One might well fear that the two cases in combination would add up to more than the sum of their parts. One might well wish that they could be twisted apart, and kept separate.
Which brings us to Oreo cookies, and Walter Liew. E.I. du Pont de Nemours and Company obtained information suggesting that Mr. Liew, who had hired two former DuPont employees, was using the company’s proprietary technique for making titanium dioxide, a white pigment used in (among other things) the filling in Oreo cookies. DuPont filed a civil complaint alleging trade secret misappropriation. Mr. Liew filed an answer in which he denied having wrongfully obtained or possessed DuPont’s trade secrets. Meanwhile, the FBI began investigating whether Mr. Liew had stolen DuPont’s trade secrets and sold them to China. Eventually the feds indicted Mr. Liew on numerous counts, and the jury convicted him on all of them. But when the Ninth Circuit broke open the trial record, it discovered that all was not lily-white inside.