it was not unreasonable your honor i think that there may be a good idea to try to narrow the issues before trial it may be a good idea to institute in the federal rule some type of summary judgment procedure but that or not that's not what the  rules of procedure provide for what the defendants were asking for here was for the government to identify what exactly were the trade secrets and why they would trade secrets numerous times t asked for depositions so that they could determine why they were trade secrets there is no provision in the federal rules of criminal procedure requiring the government to make a pretrial showing of the sufficien evidence the government's requirement in that regard is before the grand jury and they and the government methot requirement is there any other mechanism available under the criminal rules by which the trial judge could have and courage to even require t parties to narrow things down a little bit before trial i don't think so your honor i think that we have to look at what will fifteen provides i think it's clear that these depositions were not to preserve testimony and i think you have to look at will sixteen and i don't see any mechanism in rule sixteen in order to narrow down the issues and of course the government would disagree that there was any narrowing to do the indictment alleges that each of these  talking about in the indictment we went beyond that and and produced reports from the victim companies as to why they were trade secrets that goes far beyond i think  thirty nine and they are the government it's defined very broadly essentially to mean really all kinds of information but that information for government also has to show that the owner has taken reasonable measures to keep the information secret represented still where they also like in the nature of expert witnesses well i'm not sure i've never found anything in the record in which the government disclosed these individuals as experts however in the district courts for e trade secrets are trade secrets and the the argument that was put forward is if the defendant did not find this out before trial they would have to go through and cross examine the witnesses extensively trial i think that this records order on page one twenty three of the excerpts of record indicated that the district court bought that argument the district court said that the interest of justice would suffer if the defendants were forced to extract details of any opinion or lack thereof during the trial itself the court also reasons that the fairness and efficiency of the trial for us s amounted to exceptional circumstances under will fifteen i think that those statements and the defendant's request indicate that the desire here was to keep the trial shorter i don't think that that's provided for in the federal rules of criminal procedure even if the defendant trial that particular trade secrets were not in fact trade secrets i'm not sure if that could have narrowed the issues there's no summary judgment procedure in the criminal process if the judge had made a pretrial determination beyond anything that's required under will fifteen sixteen and certainly the jencks act i do think that this court has jurisdiction under section eight hundred thirty five to hear the government's appeal i do think that the district court's order was witnesses be deposed to talk about the trade secrets i think is an additional disclosure of trade secrets prior to this time the government had only produced documentary materials and summaries of witness testimony what's in vision i think something that goes far beyond that if the fenix would not want something more and they wouldn't be seeking the depositions i also think that we don't want in a sense they want something less they think they want you to narrow it down you've you record and they're going to ask to close the courtroom and judge where it's going to be faced with a decision the defendant has a right to a public trial so whatever closure is going to occur is going to have to be the minimum necessary under the circumstance whatever sealing is going to take place is also going to have to be somehow confined and what judge we're sad is i need to know what's coming in order to be able to make these determinations he looked at various remedies for this he invited us to apply for depositions and we did i'm sorry where is it in the order where does not talk about closing the courtroom when he talks about his being able to see what's coming before it's blurted out inadvertently on the witness stand and director cross examination he's under a duty under the  protect the trade secrets of course shall protect the confidentiality of the trade secret judge where said the best way to do that is for me to know what happens before it happens so that i can protect the trade secrets i don't want to have a circumstance reconsideration he used that as an additional ground to support the granting of the depositions now the question is does the court have power to grant the deposition of an adverse parties witness and the answer to that is purely yes united states versus kerrigan disposed of that question where the court said that  as a remedy to correct chilling which was apparently implicit but not explicit that a deposition of those witnesses was allowed and in re united states agree that the court had power to do that they simply disagreed with allowing the attorney ray to be deposed in an x party manner saying that the x party deposition was contrary to the entire adversary system and also at the t proposition that the court has the inherent power to grant depositions under extraordinary circumstances now the extraordinary circumstances that jeff where found were that this was an expert witness the subject matter was highly technical involved four different alleged victim companies in the trade secrets from a whole variety of sources including such things as user manuals which were being claimed as trade secrets the court also found that the process government had not  complied with the rule sixteen summary of expert opinion required a requirement and in addition is an extraordinary circumstance was of course a mandate that the court protect the trade  secret the volume of material eighty eight hundred pages the court made findings that this was the appropriate remedy under the circumstances to find out what was coming before it occurred on director cross examination and that was an in well the government could have supplied the summary of the expert testimony under rule sixteen for reasons known only itself shows not two and so you could view this as a sanction for noncompliance with rule sixteen but what we hear position government had not complied with rule sixteen the summary of expert opinion requirement and said maybe they chose not to because it would be sold voluminous but he saw this as an alternative to getting that very lengthy a secret is calling for different or more people who worked at the alleged victim companies to testify about the nature of these and colvin trade secrets that is going to be in the nature of expert testimony are the experts within the meaning of the rule that's a different question i believe they are experts within the meaning of the rule and what's your authority for that as hearty witness can be an expert simultaneously they're going to be asked to if there i mean i'm sympathetic to the position for find a way to get where you want to get i'm having trouble and i don't and i can't read rule sixteen as having these witnesses being experts within the meaning of the rule well judge where found that they were experts he found they were sensitive that he was also sensitive to the fact that you cannot have a deposition for discovery purposes insights popular this court's opinion on that subject and goes on to explain that under these circumstances these are unusual circumstances that depositions were appropriate and necessary and i think this is a very unique case confined to its unique facts the e a a the volume of material the noncompliance with rule sixteen and the court's efforts to try and get the opinion laid out in the rule sixteen compliance and not getting that it can be viewed as a sanction it could be viewed as part of the court's inherent power but it is certainly not a usurpation justifying the so called drastic remedy of mandam ok thank you thank you very much full summary is but it's not of like what judge where wanted was for the government to tell the friend its every single word that the witnesses would would say a trial putting aside the question of whether that's an appropriate s i'm not sure that the concern is that trade secrets are not disseminated in public i think that there are some additions some threshold hearings that are that a district court judge could have wanted to sort of weed out trade secrets and say that the government wouldn't be able to prove certain things were trade secrets even if that's not what the defendants were wanting and were just wanting to focus on when the courtroom should be open or closed that's seems like a pretty narrow issue that the district court judge can decide during trial as to whether the courtroom should be closed during any particular proceeding but that doesn't seem to me what animated the proceedings what animated the proceedings below and i think if you read the district court's order