Government Was Permitted to 'Infiltrate' Hytera’s 'Defense Camp,’ Says Reply Brief

The government’s “oft-repeated mantra” that it’s aware of its discovery obligations can’t “mask” that it makes “multiple concessions” that entitle Hytera to relief, said the company’s reply brief Wednesday (docket 1:20-cr-00688) in U.S. District Court for Northern Illinois in Chicago in support of its renewed motion May 1 to compel discovery and for a Classified Information Procedures Act (CIPA) hearing. Hytera contends it has “incontrovertible evidence” that the government is conducting a classified investigation into the company’s relationship with the Chinese Communist Party, and that it’s holding on to “discoverable information” that must be produced (see 2405010046). Whether the government is aware of its discovery obligations, “it misreads the law in several respects,” said Hytera’s reply brief. The government repeatedly offers to provide the court ex parte with evidence to support its claims that the defense isn’t entitled to review the reports of its interviews with Hytera’s in-house attorney, Leon Su, about his affiliation with the Chinese government or an unredacted version of the discovery the defendant attached as an exhibit to its motion, it said. Yet providing that type of information to the court -- ex parte or otherwise -- “is exactly the process envisioned under CIPA,” it said. The government “simply refuses to invoke that term,” preferring its own “ad hoc approach to following the statutory scheme,” it said. But CIPA and its protections for defendants can’t be “circumvented this way,” it said. The statutory scheme “exists precisely for this situation,” and the government can’t avoid it by offering the court evidence “in some lesser, unsupervised fashion that lacks the protective guardrails of CIPA,” it said. The government concedes that the prosecution team has access to and understands the contents of Su’s interviews, it said. The government repeatedly refers both to specific topics and questions that interviewers from Customs and Border Protection and the FBI covered, “as well as what the government claims agents did not cover,” it said. “Given the substantial overlap” between the criminal case and the related civil litigation, and in light of Su’s role as a lawyer for Hytera overseeing that civil litigation, the government’s interrogations of Su “functionally enabled them to infiltrate the defense camp,” it said. “This is a serious intrusion that cannot be addressed with a handful of informal emails or unsworn sentences in a brief,” it said. Few people have more knowledge of Hytera’s defense strategies than Su, it said: “To assess the seriousness of the intrusion, Hytera is entitled to, at the very least, sworn declarations and a hearing regarding the role of the various government actors involved in this intrusion, as well as an accounting of what information they obtained from Mr. Su and precisely what they did with that information.” A grand jury in May 2021 returned an indictment listing multiple counts of trade secret theft against Hytera and seven of its engineers who developed digital mobile radios for Motorola in Malaysia beginning in 2004 (see 2301260060). The engineers quit Motorola in 2008 and 2009 to go to work for Hytera in Shenzhen, and the government alleges they took Motorola’s DMR trade secrets with them when they left.