SECTIONS 1060-1063 - California Statutes

EVIDENCE CODE

SECTION 1060-1063

1060. If he or his agent or employee claims the privilege, the
owner of a trade secret has a privilege to refuse to disclose the
secret, and to prevent another from disclosing it, if the allowance
of the privilege will not tend to conceal fraud or otherwise work
injustice.

1061. (a) For purposes of this section, and Sections 1062 and 1063:
(1) "Trade secret" means "trade secret," as defined in subdivision
(d) of Section 3426.1 of the Civil Code, or paragraph (9) of
subdivision (a) of Section 499c of the Penal Code.
(2) "Article" means "article," as defined in paragraph (2) of
subdivision (a) of Section 499c of the Penal Code.
(b) In addition to Section 1062, the following procedure shall
apply whenever the owner of a trade secret wishes to assert his or
her trade secret privilege, as provided in Section 1060, during a
criminal proceeding:
(1) The owner of the trade secret shall file a motion for a
protective order, or the people may file the motion on the owner's
behalf and with the owner's permission. The motion shall include an
affidavit based upon personal knowledge listing the affiant's
qualifications to give an opinion concerning the trade secret at
issue, identifying, without revealing, the alleged trade secret and
articles which disclose the secret, and presenting evidence that the
secret qualifies as a trade secret under either subdivision (d) of
Section 3426.1 of the Civil Code or paragraph (9) of subdivision (a)
of Section 499c of the Penal Code. The motion and affidavit shall be
served on all parties in the proceeding.
(2) Any party in the proceeding may oppose the request for the
protective order by submitting affidavits based upon the affiant's
personal knowledge. The affidavits shall be filed under seal, but
shall be provided to the owner of the trade secret and to all parties
in the proceeding. Neither the owner of the trade secret nor any
party in the proceeding may disclose the affidavit to persons other
than to counsel of record without prior court approval.
(3) The movant shall, by a preponderance of the evidence, show
that the issuance of a protective order is proper. The court may rule
on the request without holding an evidentiary hearing. However, in
its discretion, the court may choose to hold an in camera evidentiary
hearing concerning disputed articles with only the owner of the
trade secret, the people's representative, the defendant, and
defendant's counsel present. If the court holds such a hearing, the
parties' right to examine witnesses shall not be used to obtain
discovery, but shall be directed solely toward the question of
whether the alleged trade secret qualifies for protection.
(4) If the court finds that a trade secret may be disclosed during
any criminal proceeding unless a protective order is issued and that
the issuance of a protective order would not conceal a fraud or work
an injustice, the court shall issue a protective order limiting the
use and dissemination of the trade secret, including, but not limited
to, articles disclosing that secret. The protective order may, in
the court's discretion, include the following provisions:
(A) That the trade secret may be disseminated only to counsel for
the parties, including their associate attorneys, paralegals, and
investigators, and to law enforcement officials or clerical
officials.
(B) That the defendant may view the secret only in the presence of
his or her counsel, or if not in the presence of his or her counsel,
at counsel's offices.
(C) That any party seeking to show the trade secret, or articles
containing the trade secret, to any person not designated by the
protective order shall first obtain court approval to do so:
(i) The court may require that the person receiving the trade
secret do so only in the presence of counsel for the party requesting
approval.
(ii) The court may require the person receiving the trade secret
to sign a copy of the protective order and to agree to be bound by
its terms. The order may include a provision recognizing the owner of
the trade secret to be a third-party beneficiary of that agreement.
(iii) The court may require a party seeking disclosure to an
expert to provide that expert's name, employment history, and any
other relevant information to the court for examination. The court
shall accept that information under seal, and the information shall
not be disclosed by any court except upon termination of the action
and upon a showing of good cause to believe the secret has been
disseminated by a court-approved expert. The court shall evaluate the
expert and determine whether the expert poses a discernible risk of
disclosure. The court shall withhold approval if the expert's
economic interests place the expert in a competitive position with
the victim, unless no other experts are available. The court may
interview the expert in camera in aid of its ruling. If the court
rejects the expert, it shall state its reasons for doing so on the
record and a transcript of those reasons shall be prepared and
sealed.
(D) That no articles disclosing the trade secret shall be filed or
otherwise made a part of the court record available to the public
without approval of the court and prior notice to the owner of the
secret. The owner of the secret may give either party permission to
accept the notice on the owner's behalf.
(E) Other orders as the court deems necessary to protect the
integrity of the trade secret.
(c) A ruling granting or denying a motion for a protective order
filed pursuant to subdivision (b) shall not be construed as a
determination that the alleged trade secret is or is not a trade
secret as defined by subdivision (d) of Section 3426.1 of the Civil
Code or paragraph (9) of subdivision (a) of Section 499c of the Penal
Code. Such a ruling shall not have any effect on any civil
litigation.
(d) This section shall have prospective effect only and shall not
operate to invalidate previously entered protective orders.

1062. (a) Notwithstanding any other provision of law, in a criminal
case, the court, upon motion of the owner of a trade secret, or upon
motion by the People with the consent of the owner, may exclude the
public from any portion of a criminal proceeding where the proponent
of closure has demonstrated a substantial probability that the trade
secret would otherwise be disclosed to the public during that
proceeding and a substantial probability that the disclosure would
cause serious harm to the owner of the secret, and where the court
finds that there is no overriding public interest in an open
proceeding. No evidence, however, shall be excluded during a criminal
proceeding pursuant to this section if it would conceal a fraud,
work an injustice, or deprive the People or the defendant of a fair
trial.
(b) The motion made pursuant to subdivision (a) shall identify,
without revealing, the trade secrets which would otherwise be
disclosed to the public. A showing made pursuant to subdivision (a)
shall be made during an in camera hearing with only the owner of the
trade secret, the People's representative, the defendant, and
defendant's counsel present. A court reporter shall be present during
the hearing. Any transcription of the proceedings at the in camera
hearing, as well as any articles presented at that hearing, shall be
ordered sealed by the court and only a court may allow access to its
contents upon a showing of good cause. The court, in ruling upon the
motion made pursuant to subdivision (a), may consider testimony
presented or affidavits filed in any proceeding held in that action.
(c) If, after the in camera hearing described in subdivision (b),
the court determines that exclusion of trade secret information from
the public is appropriate, the court shall close only that portion of
the criminal proceeding necessary to prevent disclosure of the trade
secret. Before granting the motion, however, the court shall find
and state for the record that the moving party has met its burden
pursuant to subdivision (b), and that the closure of that portion of
the proceeding will not deprive the People or the defendant of a fair
trial.
(d) The owner of the trade secret, the People, or the defendant
may seek relief from a ruling denying or granting closure by
petitioning a higher court for extraordinary relief.
(e) Whenever the court closes a portion of a criminal proceeding
pursuant to this section, a transcript of that closed proceeding
shall be made available to the public as soon as practicable. The
court shall redact any information qualifying as a trade secret
before making that transcript available.
(f) The court, subject to Section 867 of the Penal Code, may allow
witnesses who are bound by a protective order entered in the
criminal proceeding protecting trade secrets, pursaunt to Section
1061, to remain within the courtroom during the closed portion of the
proceeding.

1063. The following provisions shall govern requests to seal
articles which are protected by a protective order entered pursuant
to Evidence Code Section 1060 or 1061:
(a) The People shall request sealing of articles reasonably
expected to be filed or admitted into evidence as follows:
(1) No less than 10 court days before trial, and no less than five
court days before any other criminal proceeding, the People shall
file with the court a list of all articles which the People
reasonably expect to file with the court, or admit into evidence,
under seal at that proceeding. That list shall be available to the
public. The People may be relieved from providing timely notice upon
showing that exigent circumstances prevent that notice.
(2) The court shall not allow the listed articles to be filed,
admitted into evidence, or in any way made a part of the court record
otherwise open to the public before holding a hearing to consider
any objections to the People's request to seal the articles. The
court at that hearing shall allow those objecting to the sealing to
state their objections.
(3) After hearing any objections to sealing, the court shall
conduct an in camera hearing with only the owner of the trade secret
contained within those articles, the People's representative,
defendant, and defendant's counsel present. The court shall review
the articles sought to be sealed, evaluate objections to sealing, and
determine whether the People have satisfied the constitutional
standards governing public access to articles which are part of the
judicial record. The court may consider testimony presented or
affidavits filed in any proceeding held in that action. The People,
defendant, and the owner of the trade secret may file affidavits
based on the affiant's personal knowledge to be considered at that
hearing. Those affidavits are to be sealed and not released to the
public, but shall be made available to the parties. The court may
rule on the request to seal without taking testimony. If the court
takes testimony, examination of witnesses shall not be used to obtain
discovery, but shall be directed solely toward whether sealing is
appropriate.
(4) If the court finds that the movant has satisfied appropriate
constitutional standards with respect to sealing particular articles,
the court shall seal those articles if and when they are filed,
admitted into evidence, or in any way made a part of the court record
otherwise open to the public. The articles shall not be unsealed
absent an order of a court upon a showing of good cause. Failure to
examine the court file for notice of a request to seal shall not
constitute good cause to consider objections to sealing.
(b) The following procedure shall apply to other articles made a
part of the court record:
(1) Where any articles protected by a protective order entered
pursuant to Section 1060 or 1061 are filed, admitted into evidence,
or in any way made a part of the court record in such a way as to be
otherwise open to the public, the People, a defendant, or the owner
of a trade secret contained within those articles may request the
court to seal those articles.
(2) The request to seal shall be made by noticed motion filed with
the court. It may also be made orally in court at the time the
articles are made a part of the court record. Where the request is
made orally, the movant must file within 24 hours a written
description of that request, including a list of the articles which
are the subject of that request. These motions and lists shall be
available to the public.
(3) The court shall promptly conduct hearings as provided in
paragraphs (2), (3), and (4) of subdivision (a). The court shall,
pending the hearings, seal those articles which are the subject of
the request. Where a request to seal is made orally, the court may
conduct hearings at the time the articles are made a part of the
court record, but shall reconsider its ruling in light of additional
objections made by objectors within two court days after the written
record of the request to seal is made available to the public.
(4) Any articles sealed pursuant to these hearings shall not be
unsealed absent an order of a court upon a showing of good cause.
Failure to examine the court file for notice of a request to seal
shall not constitute good cause to consider objections to sealing.