[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
SAFEGUARDING TRADE SECRETS
IN THE UNITED STATES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
APRIL 17, 2018
__________
Serial No. 115-71
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
32-940 WASHINGTON : 2018
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JERROLD NADLER, New York
Wisconsin ZOE LOFGREN, California
LAMAR SMITH, Texas SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio STEVE COHEN, Tennessee
DARRELL E. ISSA, California HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC L. RICHMOND, Louisiana
TREY GOWDY, South Carolina HAKEEM S. JEFFRIES, New York
RAUL LABRADOR, Idaho DAVID CICILLINE, Rhode Island
BLAKE FARENTHOLD, Texas ERIC SWALWELL, California
DOUG COLLINS, Georgia TED LIEU, California
RON DeSANTIS, Florida JAMIE RASKIN, Maryland
KEN BUCK, Colorado PRAMILA JAYAPAL, Washington
JOHN RATCLIFFE, Texas BRAD SCHNEIDER, Illinois
MARTHA ROBY, Alabama VALDEZ VENITA ``VAL'' DEMINGS,
MATT GAETZ, Florida Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
JOHN RUTHERFORD, Florida
KAREN HANDEL, Florida
KEITH ROTHFUS, Pennsylvania
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Courts, Intellectual Property, and the Internet
DARRELL E. ISSA, California, Chairman
DOUG COLLINS, Georgia, Vice-Chairman
LAMAR SMITH, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE CHABOT, Ohio Georgia
JIM JORDAN, Ohio THEODORE E. DEUTCH, Florida
TED POE, Texas KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC L. RICHMOND, Louisiana
TREY GOWDY, South Carolina HAKEEM S. JEFFRIES, New York
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
RON DeSANTIS, Florida BRAD SCHNEIDER, Illinois
MATT GAETZ, Florida ZOE LOFGREN, California
ANDY BIGGS, Arizona STEVE COHEN, Tennessee
DAVID CICILLINE, Rhode Island
PRAMILA JAYAPAL, Washington
C O N T E N T S
----------
APRIL 17, 2018
OPENING STATEMENTS
Page
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 3
The Honorable Darrell Issa, California, Chairman, Subcommittee on
Courts, Intellectual Property, and the Internet, Committee on
the Judiciary.................................................. 1
The Honorable Jerrold Nadler, New York, Ranking Member, Committee
on the Judiciary............................................... 4
The Honorable Henry C. ``Hank'' Johnson Jr., Georgia, Ranking
Member, Subcommittee Courts, Intellectual Property, and the
Internet, Committee on the Judiciary........................... 3
WITNESSES
Mr. Kenneth R. Corsello, Chair, Trade Secrets Committee,
Intellectual Property Owners Association
Oral Statement............................................... 6
Mr. James H. Pooley, James Pooley, PLC
Oral Statement............................................... 8
Mr. David S. Almeling, Partner, O'Melveny & Myers LLP
Oral Statement............................................... 9
SAFEGUARDING TRADE SECRETS IN THE UNITED STATES
----------
TUESDAY, APRIL 17, 2018
House of Representatives
Committee on the Judiciary
Subcommittee on Courts, Intellectual Property, and the Internet
Washington, DC.
The subcommittee met, pursuant to call, at 2:00 p.m., in
Room 2141, Rayburn House Office Building, Hon. Darrell Issa
[chairman of the subcommittee] presiding.
Present: Representatives Issa, Goodlatte, Collins, Chabot,
DeSantis, Johnson of Georgia, Nadler, Schneider, and Lofgren.
Staff Present: Tom Stoll, Counsel; Eric Bagwell, Clerk;
Jason Everett, Minority Counsel; David Greengrass, Minority
Senior Counsel; and Veronica Eligan, Minority Professional
Staff Member.
Mr. Issa. Good morning. The ranking member will be here
shortly, well before his opening statement. So, I am going to
move this along. We do not know whether we will break at 2:30
for the classified briefing. The assumption right now is we
will work through it and members will come and go. So, with
that.
The subcommittee on Subcommittee on Courts, Intellectual
Property, and the Internet will now come to order. Without
objection, the chair is authorized to declare recesses of the
subcommittee at any time. We welcome everyone here today for
this hearing on Safeguarding Trade Secrets in the United
States. I will now recognize myself for an opening statement.
Trade secrets are, by definition, commercially valuable
designs, processes, techniques, and other forms of information
that provide a competitive advantage in a marketplace when kept
a closely held secret, often developed at great cost and
through many years of research.
Trade secrets drive investments in research and technology
and often are key innovation for growth. Often, a trade secret
lies in plain sight to those who are entrusted to work with
that. Famously, the Coca-Cola recipe is not in a vault, but in
fact, anyone producing the product would see each and every
ingredient and in what proportions.
Economists estimate that trade secrets comprise roughly
two-thirds of the value of companies' intellectual property
portfolios. And that they are important to success for
businesses, large and small. Something as simple as a small
company being able to simply work 2 or 3 percent more efficient
in something as simple as dry cleaning or in the preparation of
meals can give a competitive advantage.
In a large company, it could be a fraction of a percent of
efficiency in some commodity that could give somebody the
ability to make a profit. While somebody else is only able to
break even.
And during the 112th Congress, we passed the America
Invents Act to address patent litigation abuse and to respond
to calls for stopping patent trolling. Our efforts to address
patent trolling have been a vital resource to a rebounding
success, although it is still a work in process.
With that unquestionable success on the patent front,
companies developing new technologies are now more and more
turning to trade secret laws to protect their most valuable
technologies. The DTSA provided certain tools for a United
States company to protect their trade secrets while creating a
Federal civil remedy for trade secret misappropriation.
The trade secrets misappropriation, though, is limited and,
in fact, depends on quick action in many cases by those who
have had their secrets stolen. Today we will evaluate, among
other things, is the DTSA working as intended and what else can
Congress do?
Unfortunately, even after the enhancement of the DTSA,
thieves are still absconding with digital stacks of
information, documents containing the most prized trade secrets
of our companies. This hearing will help us to ensure that the
DTSA is working as intended or that we consider remedies to
make it work as we planned.
One particular area is closing the discovery loophole to
safeguarding trade secrets. What we call the discovery loophole
for today is a concern under 28 U.S.C. section 1782. The
section 1782 portion of the statute allows foreign entities
with merely an interest in foreign litigation to compel
discovery in the United States. U.S. companies argue that the
U.S. courts have interpreted section 1782 more broadly than
they should have.
They argue that foreign companies engaged in technology-
relevant litigation have been using section 1782 to obtain
information--and I want you to hear this carefully--that they
could not have obtained in their home court. Again, under
section 1782, companies in foreign domiciles are, in fact,
gaining discovery they could not have gained in their home
country. And that statute provides no protection to safeguard
trade secrets of U.S. companies.
The assumption, of course, is when you go in to a
litigation in the United States, as a matter of routine a
protective order would be granted for a great many things. Not
just trade secrets but profits, losses, names of individuals,
or even simply what your profit margin is on an item can be
protected. And yet, currently, defendants cannot go into court
with any assurance that they will have similar protections from
a suit, not in the U.S., but in a foreign country who, by
definition, would be thought to have less right to your
intellectual property rather than more.
It is possible that this could be corrected by court
action. It is possible that it could be corrected by
administrative action. And it is possible that we will have to
correct it by the action of this committee and the Congress.
And with that, I recognize the ranking member, as promised, for
his opening statement.
Mr. Johnson of Georgia. Thank you, Mr. Chairman. Ladies and
gentlemen, today we will examine whether trade secret laws have
been adequately protecting United States companies and whether
the Defend Trade Secrets Act has been working effectively.
Trade secrets provide a valuable competitive advantage in the
marketplace and often require companies to invest great sums of
money for research and development.
Trade secrets make up a major part of today's economy, and
thus, are susceptible to theft. Digitization of critical data
and the use of computer technologies and mobile devices have
made the theft of trade secrets easier. There are many examples
of trade secrets, such as customer lists, manufacturing
techniques, and confidential formulas. One of the most well-
known being the formula for Coca-Cola.
According to the Commission on the Theft of American
Intellectual Property, trade secrets theft cost the U.S.
economy between $180 billion and $540 billion a year. This fact
demonstrates how much of a financial loss trade secret theft
can have, not just on U.S. companies, but also on the entire
U.S. economy. And also demonstrates why it is so critical that
we work to protect trade secrets.
In 2016, Congress passed the Defend Trade Secrets Act,
which created a Federal civil cause of action for the
misappropriation of trade secrets. Prior to enactment of this
bill, trade secrets were protected through State
interpretations and selective application of provisions in the
Uniform Trade Secrets Act. Since the DTSA was enacted, there
have been hundreds of cases filed. It appears that the law is
allowing companies to recover for the theft of trade secrets by
competitors.
Today we are interested in hearing from the witnesses about
whether Congress needs to do more to help companies protect
their trade secrets. And we want to hear from the witnesses
about whether the Defend Trade Secrets Act is working as it was
intended, whether it is providing adequate protections, and
whether there may be more that Congress can do to prevent
future trade secret theft from U.S. companies and if so, what
approach should Congress take? I look forward to hearing from
the witnesses, and thank the chairman for holding this hearing,
and I yield back the balance of my time.
Mr. Issa. I thank the gentleman. We now recognize the
chairman of the full committee, the gentleman from Virginia,
Mr. Goodlatte.
Chairman Goodlatte. Well, thank you, Mr. Chairman. For the
last several years, the House Judiciary Committee has been
working tirelessly to protect American innovators' inventions
while also ensuring that companies are free to innovate without
fear of being harassed. One form of invention that deserves
strong protection is trade secrets.
Trade secrets are the formulas, algorithms, and recipes
that give companies an edge over their competition, like the
recipes that make Little Debbie Oatmeal Creme Pies and
Hershey's Heath Bars so delicious. Roald Dahl's fictional
Willie Wonka character and his ``everlasting gobstopper'' teach
even children that valuable business information must be kept
secret from the competition, and for good reason.
Estimates show that trade secret theft costs the U.S.
economy between $180 billion and $540 billion. The threat posed
by trade secret theft is real and significant. Protecting trade
secrets is a national priority, and this committee has
demonstrated its commitment to doing so.
Through the enactment of the Defend Trade Secrets Act,
Congress dramatically improved protections for U.S. trade
secrets. That legislation established for the first time in our
history a Federal right of action for companies to seek redress
for the harm caused them through the theft of a trade secret.
It also established a new mechanism for companies to obtain the
assistance of Federal courts and Federal law enforcement in
securing a lost trade secret before it is disseminated or
disclosed.
But, given the vital importance of trade secrets to the
U.S. economy, Congress must continue to closely monitor the
effectiveness of our trade secret protections and do all that
it can to protect America's most valuable technologies from
theft.
Unfortunately, some of the same technologies that have done
so much to improve our lives continue to make it easy to steal
valuable trade secrets. A 32 gigabyte USB flash drive can store
640,000 Word document pages, and file sharing and storage
facilities allow users to share files at the mere click of a
mouse. Using these technologies, thieves continue to steal the
crown jewels of large and small companies alike.
Recent examples involve the theft of marine construction
technology, the designs for underwater vehicles developed by a
defense contractor, the theft of technology used for printing
on any type of material, and even rice seeds genetically
programmed to express recombinant human proteins extracted for
therapeutic uses. In this hearing, we will investigate whether
the Defend Trade Secrets Act is, in fact, working as intended.
We will also investigate whether additional safeguards are
needed to further prevent the theft of U.S. trade secrets.
28 U.S.C. section 1782 allows foreign entities with merely
an interest in foreign litigation to compel discovery from U.S.
companies. The only protections expressly afforded U.S.
companies in the statute are limited to legally applicable
privileges, such as the attorney-client privilege. As applied
to foreign technology disputes, court interpretations of the
statute unquestionably expose the technologies and confidential
business information of U.S. companies to possible theft or, at
a minimum, disclosure to competitors.
This hearing will provide an opportunity to discuss the
need to amend 28 U.S.C. section 1782 to prevent foreign
entities from abusing U.S. discovery laws to impermissibly gain
access to U.S. trade secrets. I want to thank Chairman Issa for
overseeing this hearing, and I thank the witnesses for their
participation. I look forward to delving into this very
important issue.
Mr. Issa. I thank the gentleman. It is our pleasure to
introduce the ranking member of the full committee, the
gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman next
month marks the 2-year anniversary of President Obama signing
into law the Defend Trade Secrets Act, DTSA. This bipartisan
legislation, which passed nearly unanimously, created the
uniform Federal civil cause of action for misappropriation of
trade secrets. I was proud to be the lead Democratic sponsor of
this legislation, alongside the gentleman from Georgia, Mr.
Collins, as well as Senators Hatch and Coons.
Trade secrets are proprietary business information that
derive their value from being and remaining secret. This
includes secret recipes, software codes, and manufacturing
processes. Information that, if disclosed, could prove ruinous
to a company.
As the U.S. economy becomes more and more knowledge- and
service-based, trade secrets are increasingly becoming the
foundation of businesses across the country, with one estimate
placing the value of trade secrets in the United States at $5
trillion. Unfortunately, with such fortunes resting on trade
secrets, theft of this property is inevitable. And in today's
digital environment, it has never been easier to transfer
stolen property across the globe with a click of a button.
By one estimate, the American economy loses between $180
billion and $540 billion each year due to misappropriation of
trade secrets. Millions of jobs are lost as a result. Prior to
enactment of the DTSA, victims of trade secret theft had to
contend to the patchwork of Federal and State laws that
provided uneven and inadequate protection to American
companies.
The DTSA filled this gap by creating the uniform Federal
civil cause of action for theft of trade secrets. It also
provided for expedited ex parte seizure of property but only in
extraordinary circumstances where necessary to preserve
evidence or prevent dissemination. We are now 2 years after
enactment of this legislation, and it is a good time to
evaluate how the law is working and whether any further
improvements are warranted.
I understand that early indications are that the law has
been a great success. As one of the authors, I am gladdened by
this. As seen in the recent Waymo v. Uber case, companies are
successfully using the law to recover damages for the theft of
trade secrets, and equally important, the courts have not been
overburdened by a surge of litigation.
It also appears that courts are finding a reasonable
balance when exercising its extraordinary ex parte seizure
authority. But no legislation is perfect, and if additional
refinements of the law are necessary, we should certainly
consider them in due course. Trade secrets theft is a drag on
economic growth and diminishes the incentive to innovate.
With so much at stake, it is vital that the law includes
strong protections against theft of trade secrets. We took an
important step with passage of the Defend Trade Secrets Act,
and we should continue to look for opportunities to protect all
forms of American intellectual property. Thank you, Mr.
Chairman, for holding this important hearing. I look forward to
hearing from our witnesses, and I yield back the balance of my
time.
Mr. Issa. I thank the gentleman. Without objection, all
members' opening statements are made part of the record.
Mr. Issa. Pursuant to the committee's rules, would you all
three please rise to take the oath? Raise your right hands. Do
you solemnly swear or affirm that the testimony you are about
to give will be the truth, the whole truth, and nothing but the
truth? Please be seated. Let the record indicate that all three
witnesses answered in the affirmative.
Our distinguished panel of witnesses today include Mr.
Kenneth Corsello, chair of the Trade Secrets Committee at the
Intellectual Property Owners Association; Mr. James Pooley, of
James Pooley, PLC; and Mr. David Almeling, partner at O'Melveny
& Myers LLP. In other words, we have some very smart lawyers
here today.
It is the custom of the House and the rule of the committee
that we do our best to limit you each to 5 minutes so that we
can grill you with questions after your short statements. But,
as is always the case, your entire written statements will be
made a part of the record in the entirety. So, you need not
read off of anything. You can go extemporaneous for all 5
minutes, and we will still write down that you said everything
that you submitted to us. So, with that, Mr. Corsello.
STATEMENTS OF KENNETH CORSELLO, CHAIR, TRADE SECRETS COMMITTEE,
INTELLECTUAL PROPERTY OWNERS ASSOCIATION (IPO); JAMES POOLEY,
JAMES POOLEY, PLC; AND DAVID ALMELING, PARTNER, O'MELVENY &
MYERS LLP
STATEMENT OF KENNETH CORSELLO
Mr. Corsello. Thank you. Chairman Issa, Chairman Goodlatte,
Ranking Member Johnson, Ranking Member Nadler, and members of
the subcommittee, thank you for the opportunity to testify
today on the importance of trade secret protection to American
companies. My name is Ken Corsello, and I am the intellectual
property counsel for IBM's Watson Customer Engagement business
unit. I currently serve as the chair of the Trade Secret
Committee of the Intellectual Property Owners Association,
which is known as IPO.
I am testifying today on behalf of IPO, a trade association
representing companies and individuals in all industries and
fields of technology who own or are interested in intellectual
property rights. IPO supported the legislation that became the
Defend Trade Secrets Act of 2016, known as the DTSA, and we
continue to support strong trade secret laws. As the Supreme
Court has recognized, trade secret law promotes the sharing of
knowledge and the efficient operation of industry.
The trade secret laws set a standard of commercial ethics,
good faith, and fair dealing, and thus facilitate the
functioning of our economy. Without strong trade secret
protections, concern for possible disclosure of valuable
information would cause companies to be less willing to share
knowledge and companies' security precautions and costs would
increase. For American individuals and companies, the
availability of adequate legal measures to protect trade
secrets has continued to grow in importance during the 2 years
since the DTSA came into effect.
Trade secrets underlie business models across all industry
sectors. For the purposes of the DTSA, trade secrets reach all
forms and types of financial, business, scientific, technical,
economic, or engineering information. This includes the
proprietary software that is the intelligence behind many of
the products and services that we use today, as well as the
proprietary data businesses increasingly rely upon.
Using sophisticated software, companies can now extract new
insights and value from the data they collect. DTSA plays an
important role in protecting insights learned by applying data
analysis techniques to big data sets. These insights allow
businesses to improve and to reduce the costs of the products
and services.
But businesses will be less willing to make investments
needed to gather data and implement analytics tools without
confidence that the legal system will protect their proprietary
insights from being taken by others. Another reason for the
increased importance of trade secret protection is that
information has increasingly become easier to steal. With a few
mouse clicks, for example, thousands of files can be copied to
a thumb drive. The DTSA provides important Federal legal
remedies to discourage such theft.
In addition, decreases in the strength of patent protection
over the past decade have, at the margins, increased the
importance of trade secret protection. But I want to caution
that trade secret protection, copyright protection, and patent
protection are complementary, not substitutes for one another.
If, for example, a particular technology cannot by its
nature be commercialized without disclosing the innovation, as
is common, then trade secret protection is not appropriate, and
such innovation can only be protected by patents.
IPO members are grateful to this committee for its work to
adopt the protections included in the DTSA. The significant
number of cases brought under the DTSA already is evidence of
its usefulness. IPO members are watching these developments in
courts, and at this time are not aware of any significant
complaints about the DTSA itself. But there is more that can be
done to protect trade secrets.
The full IPO board recently adopted a resolution supporting
improving protection of trade secrets of American companies by
reforming 28 U.S.C. section 1782. This is the statutory section
that allows foreign litigants to come into U.S. courts and gain
access to testimony and other evidence in many cases, including
trade secrets, for use in foreign judicial proceedings.
Given the growing importance of trade secrets in our modern
economy, legislation reforming section 1782 is needed to
prevent compelled production of confidential information in
situations where the district court cannot effectively
guarantee its protection, as well as to carry out the original
intent of the statute by encouraging reciprocal treatment of
U.S. persons by foreign jurisdictions. Reforming section 1782
would encourage other countries to improve their protections
for trade secrets and will provide an incentive for those
countries to bring their civil dispute resolution systems up to
U.S. standards.
In conclusion, the member companies of IPO know that our
value is in our ideas and our creativity. The DTSA provides
important tools for safeguarding our proprietary information so
that we can continue to lead the world in creating new and
innovative technologies, products, and services. I thank you
for your attention; I will be pleased to respond to any
questions.
Mr. Issa. Thank you.
Mr. Pooley.
STATEMENT OF JAMES POOLEY
Mr. Pooley. Good afternoon, Chairman Issa, Ranking Member
Johnson, Chairman Goodlatte, Ranking Member Nadler, and members
of the subcommittee. Thank you for inviting me here today. My
name is James Pooley. I became a lawyer in Silicon Valley in
1973, and since then have handled hundreds of trade secret
disputes in State and Federal courts throughout the country.
My legal treatise, ``Trade Secrets,'' has been updated
continuously since 1997. My most recent business book,
``Secrets of Managing Information Assets in the Age of
Cyberespionage,'' was released in 2015. In December of that
year, I was privileged to testify to the Senate under then-
pending Defend Trade Secrets Act. I am currently chair of the
Sedona Conference Working Group 12 on Trade Secrets and am co-
chair of the Trade Secrets Task Force of the International
Chamber of Commerce.
Over the past 40 years, we have witnessed the most profound
change in the nature of business assets since the beginning of
the Industrial Revolution. We have transformed an economy that
depends primarily on tangible assets, like heavy machinery and
railroads, to an economy that depends primarily on data.
Importantly, this new property that fuels our economy is mainly
protected as trade secrets.
Trade secret theft hurts all kinds of companies. When
businesses lose secrets to a competitor, the competitor can go
straight to manufacturing without the costs and risks of honest
R&D, allowing it to undercut the original innovator, resulting
in lost profits and jobs. Companies are increasingly aware that
their trade secrets are vulnerable to loss, and they are taking
steps to protect themselves. But no management system is
perfect.
And so, trade secret law exists to provide judicial
intervention when the integrity of a company's confidential
information is compromised or threatened. In order to provide
more efficient and reliable access to the courts, you enacted
the Defend Trade Secrets Act of 2016. I am pleased to report
that it has been a great success. As a litigator using the
statues, and in many conversations with other lawyers and with
judges handling these cases, we see that this new statute is
working as Congress intended.
The fears expressed during consideration of the law that it
might encourage a new species of trade secret troll have not
materialized. And the major concern over possible misuse of the
DTSA's ex parte seizure provisions has also dissipated, since
only a small handful of such orders have actually been issued
by the courts. In short, the DTSA is well on its way to
achieving its goal of strengthening the enforcement and
predictability of trade secret rights.
One of the virtues of getting an improved legal environment
for the protection of trade secrets is that it is easier to
spot weak spots in the system. One of those relates to the
operation of the 28 U.S.C. section 1782, which allows foreign
litigants to petition U.S. courts for access to testimony and
other evidence for use in foreign proceedings.
This statute has been in effect for many years, but due to
broad interpretations by the courts, it has come to be used
much more frequently, exposing potentially sensitive data from
U.S. companies at the request of foreign entities who
themselves do not face reciprocal discovery. In effect, it is a
one-way street for the acquisition and export of U.S.
information.
What does this have to do with trade secrets? Our own
courts have a lot of experience in restricting access and
preventing the misuse or publication of discovery material.
However, with section 1782, the ultimate recipient of the
information is a foreign court, where trade secret protections
can vary from relatively weak, to dangerous, to virtually
nonexistent.
In fact, the trade secret enforcement frameworks of most
countries in the world are substantially weaker than in the
U.S. Therefore, when the confidential information of a U.S.
business is ordered produced under a section 1782 petition,
there are no reliable safeguards to ensure that the receiving
court will provide adequate protection to maintain secrecy.
We should all be deeply worried that under section 1782
information belonging to U.S. companies can be sent to a
foreign tribunal without any protections imposed by our courts.
We should insist that U.S. courts, in granting these petitions,
impose reasonable safeguards against misuse or disclosure
before the information leaves our country.
In my view, such a modest requirement would provide
substantially enhanced protection for the trade secrets of U.S.
businesses. I appreciate the opportunity to appear before you
today and welcome any questions. Thank you.
Mr. Issa. Thank you.
Mr. Almeling.
STATEMENT OF DAVID ALMELING
Mr. Almeling. Thank you. Chairman Issa, Ranking Member
Johnson, Chairman Goodlatte, and Ranking Member Nadler, and
distinguished members of the subcommittee, thank you for
inviting me to testify today. My name is David Almeling, and I
am a partner at the law firm of O'Melveny & Myers. I appear
today, though, in my individual capacity and not on behalf of
my firm, my clients, or anyone else.
As the subcommittee recognized as part of its work on the
DTSA a few years ago, trade secrets are increasingly valuable
to American companies and increasingly in danger of
misappropriation. Those trends continue today.
My colleagues and I conducted a survey, published in
January 2018, with attorneys who worked at companies. More than
75 percent of the respondents to our survey said that the risks
to their trade secrets have increased over the past 10 years;
50 percent saying those increases have been significant. None--
zero--believe those risks have decreased.
The DTSA was enacted in part to address these increased
threats to trade secrets. As noted, next month is the DTSA's 2-
year anniversary. Therefore, I would like to share with the
subcommittee some data on how the DTSA is progressing in its
first couple of years.
First, while trade secrets owners are using the DTSA to
protect and enforce their trade secret rights, the DTSA did not
result in an unmanageable surge in litigation. The number of
new cases filed in Federal district court under the DTSA in its
first year of existence was about 500 cases. That is just one
benchmark. During that same year, the number of new patent
cases was about 10 times that number.
Second, the Defend Trade Secrets Act cases are spread
throughout the United States and are not concentrated in a
small number of venues. During the first year of the DTSA, no
venue had more than 10 percent of DTSA cases. And the most
popular venues were the Northern District of California, the
Southern District of New York, the Northern District of
Illinois, and the Central District of California. The
popularity of these venues makes sense as they contain
population in commercial centers of San Francisco, Chicago, Los
Angeles, and New York.
Third, we now have data on the provision of the DTSA that
permits trade secret owners to request on an ex parte basis
that certain property be seized from the defendant to prevent
the dissemination of trade secrets. This is an important though
limited tool to protect trade secrets when other relief would
be insufficient. For the approximately 2-year period, from the
beginning of the DTSA until last week, there have been at least
21 cases that involved requests for an ex parte seizure, and of
those, five were granted. Thus, it appears that litigants and
courts are heading the DTSA's instruction that this remedy is
only available in extraordinary circumstances.
From these and other statistics, I draw a couple of
conclusions. One is that the DTSA has successfully provided
trade secret owners with a new means of protecting and
enforcing their trade secrets, which trade secret owners are
using by filing cases in Federal court when previously they
were limited in many instances to State court.
Another conclusion is that courts are applying the DTSA in
a way that does not appear to be fundamentally changing trade
secret litigation, but that is instead, importantly, moving
towards a more uniform, consistent, and efficient application
of trade secret. In short, the DTSA is a welcome addition to
the trade secret landscape.
One issue that affects trade secrets that does not relate
to the DTSA is section 1782, which has been discussed earlier
today, and which allows Federal courts to compel U.S. residents
to participate in discovery related to a foreign proceeding.
That section does not, however, expressly provide for the
protection of confidential information. While courts have
issued various orders to afford some degree of protection,
additional guidance from Congress would be helpful. I thank the
subcommittee again for this opportunity, and I look forward to
your questions.
Mr. Issa. Thank you. I will now recognize myself for the
first round of questioning. There will be 12 rounds of
questioning in case you had questions. You have all alluded to
it, but let's just go through the numbers maybe to make the
record complete. And I will ask each of you just to respond
briefly.
In a United States case in Federal court, in the ordinary
course of litigation between two litigators, assuming for a
moment, as is often the case, they are competitors. Isn't a
protective order one of the very first items that is
essentially adjudicated before the judge or a magistrate?
Mr. Corsello. Yes. That is absolutely correct. Yes.
Mr. Pooley. Yes. That is true, Congressman.
Mr. Almeling. That is right.
Mr. Issa. And in patent cases, is that not almost always
the first and most argued burden other than motions for
dismissals?
Mr. Corsello. Yes. It is early, and oftentimes, there are
arguments about it.
Mr. Pooley. Yes. It is quite early, and it is often
stipulated by the court what the form should be. So, it is done
quickly. Yes.
Mr. Almeling. It is often early, and certainly before the
production of any confidential information.
Mr. Issa. And the premier court for handling in the U.S.
events from outside the U.S. would be an administrative court
known as the ITC; would that not be correct--that the ITC
handles a huge amount of intellectual property cases on behalf
of U.S. companies regularly?
And the question that comes out of that is, is it not true
the ITC has a form protective order that is universally almost
never modified, and as a result, litigants know that there will
be a strong protective order at the time they begin a process
before the administrative court known as the ITC? Is that to
the extent you practice? Mr. Pooley, I know you have been
there.
Mr. Pooley. Yes, I have, your honor, and yes, you are
right. They have one.
Mr. Issa. Please do not ``your honor.''
Mr. Pooley. Yes. This is very much like a court so, I hope
you will forgive me. Thank you, Mr. Chairman. Yes, they do have
an order. Everyone knows what it is, and they are very
reluctant to change it, and that does add to the predictability
of those proceedings.
Mr. Issa. So, as I said in my opening statement, there were
three places in which we could bring some relief to companies
who feel that they are going to be or have been ripped off. The
administration itself, the Article III courts themselves, or
Congress.
So, let me just ask a straight question that is not even on
my list. If the courts were to, sua sponte, begin developing
and producing for these 1782s, a protective order that was
robust including, as you mentioned, the retention of
jurisdiction as appropriate, would that not go a long way
toward correcting something that we see as a problem that
could, in fact, really affect American competitiveness?
Mr. Corsello. Well, yes. If the courts would uniformly do
that, that would help. It might be difficult to get them all to
march on the same tune.
Mr. Issa. Well, the ninth circuit, of course, would lead
the way I am sure, but Mr. Pooley, speaking on behalf of the
9th Circuit.
Mr. Pooley. Yes. I would not dare to do that, Mr. Chairman,
but yes. It would be helpful. It would, of course, be most
helpful if the courts were informed in each case about the
risks of where the information is going. What tribunal is
getting it, and that would help them draft an appropriate kind
of protective order.
Mr. Issa. Mr. Almeling, I am going to modify the question
for the answer to try to get as much in as I can. If the courts
need to do it as uniformly as possible, if they need to
consider the fact of, if you will, the worse case scenario of a
foreign country--let's say China just for an example--where it
could be a government entity essentially on a systematic basis
trying to exploit information using litigation, since that is a
pattern that we know exists.
If you assume all of that, then do you believe that there
is a role or requirement that Congress create that uniformity
by dictating or mandating that at least the consideration and
certain parameters of a protective order be placed?
Mr. Almeling. It would certainly be helpful for our
Congress to provide some guidance on those protections and the
confidential aspects of the discovery that takes place
overseas.
Mr. Issa. I could send them a draft, but I am assuming you
are thinking of something a little stronger than just a
suggestion.
Mr. Almeling. There are various things Congress can do that
would assist the courts. Unfortunately, right now 1782 does
not, which is one of the reasons that we are here today is that
it would be helpful if it did have something like that.
Mr. Issa. Mr. Corsello, I am going to again modify the
question. Assuming that that were not the only remedy, and
assuming that we did that, what else would you say needs to
occur besides this form of guidance, if you will, on a
protective order? And I am going to give you the leading
question. The Department of Commerce and our State Department
regularly engage in global agreements; agreements for standard
setting.
Do you believe that some part of the administration's work
should include, if you will, reciprocal trade agreements that
recognize that this problem could go both ways and that there
need to be fair protections between, at least, responsible
nations?
Mr. Corsello. Yes. I think that is exactly right. I think
that would be very helpful. What we want to see is reciprocity.
We want to see the other nations, you know, come up to U.S.
standards.
Mr. Issa. So, in closing with my questions, the answers I
think I heard was it would be nice if the courts recognized
that this gap is fillable, at least in part by their taking
responsibility for protective orders, which they have a right
to do in a case.
It would be equally, if not better, for the uniformity of
those to come from guidance of some sort in a way of
legislation from Congress. And the administration needs to
weigh-in from a trade standpoint to have reciprocal agreements
that envision responsible countries, each directing their
courts to do something that would allow for protection?
Mr. Corsello. I agree with that.
Mr. Issa. So, we have got three branches here that all need
to work, right?
Mr. Corsello. Yes.
Mr. Issa. With that, I recognize the ranking member for a
similar round of questioning.
Mr. Johnson of Georgia. Thank you, and unlike a judge, I
will be able to----
Mr. Issa. But you are a judge.
Mr. Johnson of Georgia. Well, not in this proceeding. I
have often wanted judges to be here to be impartial arbiters.
So, I can relate to you, Mr. Pooley. But, Mr. Corsello: has the
availability of adequate legal measures to protect and enforce
trade secrets grown in importance in the past 2 years that the
DTSA has been enacted?
Mr. Corsello. Yes. Absolutely it has. I mean, trade secret
information has become more valuable, and it has become easier
to steal, even in the past 2 years.
Mr. Johnson of Georgia. Why has the value increased at this
rate? At an incredible rate, actually.
Mr. Corsello. Well, I think to a large degree, it is the
advances in information technology have made information more
important to our economy and to our industry. That is a big
part of it.
Mr. Johnson of Georgia. How would reforming 28 U.S.C.
section 1782 encourage other countries to improve their
protections for trade secrets?
Mr. Corsello. Well, if we included, for example, a part of
section 1782 that would only allow for the disclosure and
production information. If it was protected by other countries,
then they would have an incentive to add those type of
protections to their laws.
Mr. Johnson of Georgia. Thank you. Mr. Pooley, is it true
that U.S. companies are often singled out for targeting for
trade secret theft?
Mr. Pooley. Yes, it is, Mr. Johnson. Most of the valuable
information produced in the Information Age comes from here,
and that makes us a target because this is where the valuable
property is.
Mr. Johnson of Georgia. Thank you. In your testimony, you
state that in a recent survey by the National Science
Foundation and the Census Bureau, companies classified as ``R&D
intensive'' were asked to rank the importance of various kinds
of IP laws in protecting their competitive advantage and trade
secrets came out on top. Can you elaborate on that?
Mr. Pooley. Yes. I think that does not mean that patents
are not important because, of course, they protect critical
inventions, but information is what is protected by trade
secrets, and that is much broader. And so, companies have to
look very carefully at what it is that provides them a
competitive edge across their entire business, and when they do
that, they see that trade secrecy is something that is relevant
more of the time than patenting.
Mr. Johnson of Georgia. The importance of trade secrets; is
it often more to smaller businesses than larger businesses?
Mr. Pooley. Yes. Indeed, it is. Patents are expensive, and
sometimes the innovations of small businesses, in order to
succeed in a fast-growing market, they have to rely on simply
being able to protect their first mover advantage and keeping
the information that they do not want the competition to see
inside their own organization.
Mr. Johnson of Georgia. Thank you. Mr. Almeling, is precise
data on trade secrets and theft of trade secrets difficult to
obtain? And if so, why?
Mr. Almeling. It is. One of the reasons is trade secrets
are, by definition, secret, and so there is not a lot of public
information that exists about them. Companies are obviously
reluctant to share information about what they consider secret.
Another is that the way that we track litigation in the
United States often looks at certain information that is
tracked for other types of IP. There is not yet that same type
of information for trade secret cases. That could change, of
course, and it will be useful for statistical purposes if it
did, but right now it is difficult to analyze.
Mr. Johnson of Georgia. During the first year after the
DTSA was enacted, what were the most popular venues for trade
secret cases, and were those the most popular venues for trade
secrets before DTSA was enacted?
Mr. Almeling. The most popular venues after the DTSA were
in California in the Northern District, in New York in the
Southern District, Illinois in the Northern District, and also,
California in the Southern District, and the answer to your
second part of the question is yes. When you compare the data
before the DTSA to the data after the DTSA, the same courts are
the most common sources for trade secret cases.
Mr. Johnson of Georgia. Does the popularity of those venues
make sense? I suppose it does, but what is your opinion?
Mr. Almeling. I agree. That, it does. They are commercial
and population centers. They also are centers of major
innovation in the United States, either from a technical
perspective, a financial perspective, or from others. They are
large, important areas and those are the districts that
comprise them.
Mr. Johnson of Georgia. Thank you, and I yield back, Mr.
Chairman.
Mr. Issa. Just for the record, are they not also the
corporate headquarters of the Fortune 500, New York, Chicago,
Los Angeles and so on? So, it is sort of a combination of
innovation, but also, to be honest, it is where the records are
kept?
Mr. Almeling. That is correct.
Mr. Issa. Thank you. We now go to the gentleman from
Georgia, Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman. Thanks for holding
this hearing today. I am glad to have it. Trade secrets is, we
have talked about before, the lifeblood of many businesses and
their value to the economy, and the continuing prevalence and
growth in American innovation. It cannot be overstated.
It was with that in mind when we worked on this, and I
introduced this Defend Trade Secrets Act in the 114th Congress
of Senator Hatch, and it is one of those times when
bipartisanship showed through because in 2016 it passed the
House with 410 to 2, and 87 to 0 in the Senate, which is
something in and of itself is a miracle. It has created the
Federal Civil Cause of Action for Trade Secret
Misappropriation.
It also required something that I want to point out before
we get started, Mr. Chairman, is this. It required the Attorney
General to direct the patent and trademark office, and the
Intellectual Property Enforcement Coordinator to issue a report
on the theft of trade secrets abroad, and recommendations for
how to better protect against it and improve it.
Now this was supposed to be an initial one after a year and
then biannual after that. Nearly 2 years later that report has
not been issued, and that statistics that we were talking about
just a second ago is approached in here that we could look at.
``Today I am sending a letter to the Attorney General
requesting that this report be issued so that we have more
information on the scope and continued problem of trade secret
theft. I am glad to have this opportunity today to discuss the
importance of trade secret protections and analyze the effects
of Defend Trade Secrets Act and look for continued ways to
improve our intellectual property.''
I think one of the things that we have seen from the bill
that we authored was the simple fact that it is working, and I
think that is a good thing to see. Are there things that we can
improve on? Yes. I believe so, and Mr. Almeling, one of the
biggest parts, and you touched on this, and I do not want to
rehash what you said, but the ex parte seizure provision was
probably one of the more controversial issues that we had to
work out. We did a lot of mitigation in the bill to do that.
Would you agree that it is being used as intended and that it
has been applied and interpreted in real world cases as we
needed it to be?
Mr. Almeling. I think it has. The statutory provision that
was created for the ex parte seizure, as you noted, is very
detailed, and courts have been following that structure in
issuing orders, and they have been analyzing the elements that
Congress required them to analyze. And it has been used not in
large share of trade secret cases. The other types of
injunctions of temporary restraining orders and preliminary
injunctions have been used for those. It has rather been used
for those small number of extraordinary cases where it would be
most applicable.
Mr. Collins. Good. Well, and I think that is one of the
things, and one of the things is I think the bill is working. I
am glad to see it is working, but there is also some issues
that we do have, and I will open this up to anybody. We will
start right there since you were just answering.
In your testimony you talked about the TRIPS Agreement
setting basic standards for trade secret protection through the
industrialized world, but it may not be enough because of
weaker trade secret laws and protections overseas, and I have
heard this from some companies as well and the issues of it.
What can we do there maybe through an improving what we have or
making that a little bit perceived differently, I guess is the
best way to say it, especially when dealing with foreign
countries?
Mr. Almeling. I think that is where section 1782 comes
about because that involves the discovery for use in a foreign
proceeding and providing additional details about the
protection of confidential information would make that
stronger.
Mr. Collins. Okay. Mr. Pooley, let's talk real world. One
of the things about this is sometimes we do not have this
opportunity to come back and look at a bill that maybe is
working and maybe things we can do, but this one is working.
Can you give us some examples on some actual cases and how it
was strengthened that this actually helped?
Mr. Pooley. Yes. Well it was mentioned earlier--First of
all, thank you, Mr. Collins, for your work in bringing the DTSA
to reality. Earlier someone mentioned the Waymo v. Uber case. A
very well-known case that was in Federal court largely because
the patent claim in it went away. It was there because of the
Defend Trade Secrets Act original jurisdiction. And so, we can
see there an example of a very significant case being taken to
Federal court because it could be.
And in my work I have reviewed probably hundreds of cases
that have resulted in opinions from the Defend Trade Secrets
Act, and they all have approached it in a very classical, sober
way that aligns with the jurisprudence that we are all very
familiar with.
So, I think one of the most important things to report is
that there has not been anything terribly unusual about the
opinions that we have seen come out, and the courts have been,
as Mr. Almeling expressed, applying this statute in the way
that it was intended.
Mr. Collins. Well, that is what you like to have. And just
one final--just to end all this, Mr. Chairman, is one of the
things is we know this did not stop this issue. Okay? We still
know trade secrets is a big issue. We still know the theft is
going on. In fact, the FBI and the DOJ is continuing to make a
handful of these cases every year; 79 currently pending at the
end of fiscal year 2017.
Just real quick, if Mr. Corsello, anybody wants to jump in.
From an enforcement standpoint, is there anything to improve
all or help with that would help the law enforcement address
and keep up with the trade secret theft, just as I close out my
question?
Mr. Pooley. Well, my own view, Mr. Collins, is that we need
more international discussion over how to help other countries
bring up their laws and their enforcement systems to a level
that is more effective than what we see now, and that if we can
just carry on a dialogue, whether within the context of free
trade agreements or otherwise just as best practices. That
would be very helpful.
Mr. Collins. Okay. Good. Mr. Corsello.
Mr. Corsello. I agree.
Mr. Collins. Good. Okay. Mr. Chairman, I appreciate it, and
I think we are seeing good results, and sometimes it is
actually good to see these comes back a lot like that. Thanks
for your help as well.
Mr. Issa. Thank you. Now for round 2 of 12. No. I will be
brief. I have a question. Since we have been informed by the
Department of Justice that they are working on the report that
they required us, that we required in legislation one year. Let
me ask a question.
I do not want to second guess, but let's just assume that
they are working on it right behind the 1.3 million documents
that were subpoenaed that are also overdue. Let's just assume
that for a moment. In retrospect, would we have been better off
having the Office of Management and Budget and OPEC or some
other group that really is more related to this gather from the
Department of Justice as needed and the other agencies?
The statute seemed pretty neat at the time but, of course,
it turned out the Department of Justice is not necessarily very
well-suited to this historically. Any comments on that from
your experience? You do not have to bash the Department of
Justice. You just have to ask should this committee consider,
now and in the future, the accumulation of this data being done
either by the Office of Management and Budget or some other
part of the executive branch?
Mr. Corsello. Yeah. I do not have any insights as to which
branch would make more sense, but I think it would be good for
the committee to think about, given the fact that it is a bit
late, whether there is a better part of the government to do
this, and I do agree. I have been looking forward to it,
personally.
Mr. Issa. I, personally, would have sent it to Commerce
myself, but only because the obvious effect on domestic
commerce does give them an interest in--we want to send things
overseas. Just not our secrets. Mr. Pooley, any ideas from your
years of experience in working with this bureaucracy?
Mr. Pooley. Most of my years of experience were with a
different bureaucracy, but I would not presume to have an
opinion on which part of this one here in Washington is the
right one to do this. I would only agree that it is critically
important that we gather the information from the best sources
available.
Mr. Issa. Any closing comments on that? One of the
challenges we have is if they do not meet a revised deadline,
how do we gather the information since we have received nothing
yet to date?
Mr. Almeling. I apologize, Chairman. My practice focuses on
trade secret counseling and litigation. So, I will defer to the
subcommittee on what it believes. I pass.
Mr. Issa. Then you get my closing question. Up until now,
China has not aggressively used this technique as a backdoor
for stripping off information. Is there anything under current
law and/or practice that would stop this from being a new and
effective way using litigation in China. A place where if you
sue them for stealing your technology, they sue you back for
patent infringement. Your case stalls. Their case goes forward
and you typically lose. With the kind of practices that go on
in that very large economy, is there any reason to believe that
if we do not fix this it could not grow to be more than just
opportunistic companies, but rather a more concerted effort to
take trade secrets?
Mr. Almeling. I have not done a detailed analysis or a----
Mr. Issa. But you are a clever lawyer practicing. If you
had a client, let's say China, do you believe that you could
advise your client that this loophole could be turned into a
manhole?
Mr. Almeling. It is certainly correct that we do need to
fix section 1782, and companies and individuals throughout the
world are using that. So, I would say that if there are things
that we can do to shut that loophole, we should certainly do
them.
Mr. Pooley. I would only add, Mr. Chairman, that there are
lawyers in law firms throughout the world who are promoting
this particular statute as a way to do the kinds of things that
you have described here.
Mr. Issa. So, it has been discovered. It is only a question
of how fast this wormhole grows.
Mr. Pooley. It is well known.
Mr. Corsello. I do not have anything to add to that.
Mr. Issa. Okay. Let me just close with a statement and go
to the ranking member. In my practice, before I came to
Congress, the one thing that I feared the most being lost in
the way of intellectual property or trade secrets was the
vulnerability of my company. That ultimately, the American
people sometimes think of a patent and a trade secret as the
same thing.
They think of a trade secret is something that you are
keeping secret because you are not patenting it, because you do
not want to share it with the world, but if I had a high cost
of a product--let's say I was selling a product at break-even
just to be competitive--I did not want my competitors to know,
especially if they had a lower cost of production than I did.
Vice versa, if I had a lower cost of production, I sure did
not want them to know who my source was that was giving me that
lower cost of production. And so, I always tell people the
difference between much intellectual property, which is about
what you have, and trade secrets is trade secrets sometimes are
protecting from people knowing what you do not have.
And you cannot patent what you do not have. You cannot
patent your vulnerabilities, and yet, if people learn your
vulnerabilities it can destroy your company and so, hopefully
today we have at least made a down payment on people
understanding that we do need to protect it as or more
strenuously than we do patents. With that, the ranking member
gets the close.
Mr. Johnson of Georgia. Thank you. I would like to know a
little bit more about the scope of the problem of compelled
production under section 1782 of confidential information to
foreign tribunals when those tribunals do not protect secrets
of U.S. businesses. How many times has that occurred over the
last 2 years since passage of the DTSA versus the 2 years prior
to passage? We have any idea?
Mr. Corsello. Well, I am not aware of any numbers, any
counts, statistics on the number of times production has been
compelled. We have counted the number of decisions from the
courts; written decisions on the section 1782 petitions, and
that number has gone up dramatically since the Intel v. AMD
decision, 2004.
There were an average of 63 decisions per year, written
opinions of the court all based on a 1782 petition since 2004.
Before 2004, there were only about 13 decisions per year. So,
that Intel v. AMD really opened up the aperture and made it
much more widely used than it was.
Mr. Pooley. And I think in response to your question, there
has not been any noticeable difference in filings of these
petitions since the DTSA.
Mr. Johnson of Georgia. Do you believe the DTSA provides
sufficient remedies to discourage the theft of trade secrets?
Mr. Pooley. Well, in general, absolutely, Mr. Johnson. As
we said earlier, the DTSA is an improvement in an environment
that is quite challenging, but one of the problems that remains
to be attended to is section 1782 because we have not, until
now, instructed the courts that confidentiality protection for
the information is one of the issues they should be looking at
before the information leaves the country. And if we were to
fix that, that would improve the situation significantly.
Mr. Johnson of Georgia. Thank you. Any other comments?
Mr. Corsello. No. I do not have any more.
Mr. Johnson of Georgia. All right. Well, I thank you,
gentlemen for appearing today and I yield back to the chairman.
Mr. Issa. Thank you, and in closing, I am simply going to
ask that the extract from the Procter & Gamble v. Kimberly-
Clark be placed in the record, and the reason for it is that,
although it does not go to the ranking member's statement, it
does go to an outline of things which the judge believed could
be helpful and could, in fact, lead to some protection.
I might note that in this case in Wisconsin, I guess it
was, they did not order it. They simply considered that they
could do it. And I think it makes the case that judges do know
what could be helpful. They deal with protective orders
regularly, and since the judge knew what was right, but in this
case did not do it, I think it should be placed in the record
so that either the courts, the administration or we can make it
clear that they should do it.
Mr. Issa. And with that, all members will have 5 days in
order to supplement their questions and comments. We would ask
that you do the same. If you have any additional thoughts that
came as a result of this hearing, please submit it to us by the
end of the week. We stand adjourned.
[Whereupon, at 3:02 p.m., the subcommittee was adjourned.]