1. Assess the Investigation before Responding
Early government contact may reveal little about the recipient's status. Before an interview, production, or voluntary submission, the defense should identify who is investigating, preserve relevant material, and learn what conduct is under review.
Clarify Status and Immediate Risk
- Determine whether the client is a witness, subject, or target when that information is available.
- Examine subpoenas, target notices, interview requests, and search activity before responding.
- Separate personal interests from an employer's interests when they may diverge.
Preserve Privilege and Evidence
A Government and Internal Investigations review can organize the first response.
- Preserve relevant records without altering, deleting, or concealing evidence.
- Use sound privilege protocols for legal communications and internal reviews.
- Avoid informal explanations that may create unintended admissions.
2. Use the Pre-Indictment Stage to Test the Charging Theory
A federal case may proceed under the Economic Espionage Act, while state prosecutors use separate offenses. The defense should identify the possible charge before deciding whether voluntary contact could help.
Match the Facts to the Governing Statute
- 18 U.S.C. § 1832 requires a qualifying trade secret plus the statute's conduct, knowledge, intent, economic-benefit, and injury elements.
- Penal Law § 155.30(3) covers theft of secret scientific material as fourth-degree grand larceny.
- Penal Law § 165.07 separately covers unauthorized tangible reproduction or representation of secret scientific material.
Choose Government Contact Deliberately
- Consider whether a voluntary submission could correct a material factual error.
- Do not treat target status as proof of guilt or certain indictment.
- Prepare for interviews without coaching testimony or interfering with witnesses.
3. Prepare for Indictment, Arraignment, and Release
If prosecutors obtain an indictment, the case moves into active criminal litigation. Early proceedings may address arraignment, release or detention, and scheduling before discovery and motions develop.
Prepare for the First Court Proceedings
- Read each count against the cited statute and alleged conduct.
- Prepare for the initial appearance or arraignment required by the case posture.
- Check the assigned judge's individual rules and applicable local criminal rules.
Address Release Conditions on the Record
- Develop facts relevant to appearance and the statutory release factors.
- Address travel, device access, confidential information, or witness contact if raised.
- Do not assume trade secret charges carry standard release conditions.
4. Use Discovery and Plea Talks to Test the Case
Discovery can show how prosecutors connect files, messages, devices, and witnesses to the alleged offense. A plea offer should then be measured against that record, the charged elements, Guidelines issues, and viable trial positions.
Organize Discovery Around the Elements
Discovery Obligations should be read with the charges and scheduling orders.
- Track evidence of secrecy measures, access, authorization, knowledge, and intent.
- Review Rule 16 material and applicable Brady and Giglio disclosures.
- Compare forensic evidence with access rights and actual job duties.
Test Valuation and Plea Terms
- Examine how prosecutors calculate loss or the value of the information.
- Review factual admissions, Guidelines terms, restitution, forfeiture, and supervised release.
- Compare the offer with viable motions and the risks of trial.
5. Prepare Motions, Trial, and Sentencing Issues Early
Cases that do not resolve by plea require focused work on admissibility, experts, statutory elements, and trial proof. Sentencing and restitution also require separate analysis if the case ends in a conviction or guilty plea.
Challenge the Government'S Proof
- Evaluate suppression and evidentiary motions supported by the record.
- Test expert proof under Federal Rule of Evidence 702 and Daubert principles when appropriate.
- Use procedures needed to protect trade secret confidentiality during litigation.
Prepare Trial and Sentencing Positions
- Focus trial proof on secrecy, access, authorization, knowledge, intent, and economic benefit.
- Challenge unsupported Guidelines, loss, valuation, forfeiture, or restitution positions.
- Develop mitigating facts tied to the statutory sentencing factors.
6. Keep Parallel Civil Litigation in View
Criminal and civil trade secret matters can move on different tracks while relying on the same documents and witnesses. Statements made in one case may affect the other, so coordination should begin before major disclosures or admissions.
Coordinate without Compromising the Defense
Related Intellectual Property Litigation can create separate exposure.
- Consider whether criminal admissions could affect civil claims.
- Coordinate document positions without weakening the criminal defense.
- Protect confidential alleged trade secret material in both proceedings.
Separate Criminal and Civil Remedies
- Do not treat criminal restitution as the same measure as civil damages.
- Track privilege and Fifth Amendment issues before testimony or discovery responses.
- Assess whether timing in one case changes strategy in the other.
7. Frequently Asked Questions
What does target status mean in a federal trade secret investigation?
Department of Justice policy uses target status when substantial evidence links a person to a crime and the prosecutor views that person as a putative defendant. It does not establish guilt or guarantee indictment.
Can downloading company files become criminal trade secret theft?
Downloading alone does not establish a federal offense. Under 18 U.S.C. § 1832, prosecutors must prove the statute's required elements, including a qualifying trade secret and the required knowledge and intent.
Is secret scientific material the same as a federal trade secret?
No. State Penal Law defines secret scientific material separately, while 18 U.S.C. § 1839 defines trade secret for the federal Economic Espionage Act.
8. Build the Defense before Charging Decisions Narrow the Options
Trade secret investigations mix criminal procedure with technical evidence, employment records, and intellectual property issues. SJKP's attorneys can assess the investigation stage, evaluate federal or state exposure, and develop a defense strategy for charging, discovery, plea, trial, and sentencing issues.
25 Aug, 2026
