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National Crime Victim Law Institute

United States v. Nosal, No. CR-08-0237 EMC, 2013 WL 1405844 (N.D. Cal. Apr. 8, 2013) (slip copy).

April 25, 2013

Defendant, formerly a high-level employee at an international executive recruitment service firm, was indicted on charges of mail fraud, theft of trade secrets, and illegal computer intrusion, resulting from his use of his former-employer’s confidential database to help him start a competing business.  Before trial, the court issued an order granting the state’s motion to exclude from the courtroom most witnesses, including three attorneys for the corporate-victim, defendant’s former employer.  The corporate-victim moved that it had the right to designate representatives of its choice to attend the proceedings under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(3), which gives crime victims the right not to be excluded from certain court proceedings absent a showing that the victim’s testimony would be materially altered by being present.  In his response, defendant offered to refrain from calling two of the three attorneys, but did still intend to subpoena the third attorney for the victim, Mr. Robertson.  The victim responded that it had an interest in having its attorneys present, including Mr. Robertson, to protect trade secrets and attorney-client privileged communications.  The court rejected the corporate-victim’s argument, stating: “Given that these issues [relating to trade secrets] have largely been settled through pre-trial rulings, [the victim] provides no explanation of why they need not only a representative at the trial, but Mr. Robertson in particular.  While [the victim] is permitted to have a representative present at trial, the incremental benefit it might gain from having Mr. Robertson present rather than any other attorney or corporate representative of [the victim], strongly suggests its assertion of such a right under the CVRA is without basis … .”  The court further found that any incremental benefit from having Mr. Robertson present was outweighed by the danger of prejudicing defendant, who intended to call him as a witness.  Accordingly, the corporate-victim’s motion was granted to the extent it allowed the two other attorneys to be present at trial, but was denied as to Mr. Robertson.