Tuesday, March 31, 2009, 3/31/2009 10:07:00 AM

Former Congressional Investigator Talks About Trade Secret Protections in Congressional Investigations

By Todd

John Sopko is formerly a counsel to Congressional committees and currently a partner in the Akin Gump law firm. His bio can be found here: http://www.akingump.com/jsopko/.

The following exchange from a Metropolitan Corporate Counsel piece captures Mr. Sopko's views regarding the touchy issue of trade secrets that are sought by Congress in its investigatory function:

Editor: What role does e-discovery play in congressional investigations?
Sopko: Discovery of electronic documents is a major tool for congressional oversight committees. Most congressional investigations start off with a document request, usually massive in scope, that attempts to capture electronic documents and messages. A committee may issue multiple requests, so the recipient has to be particularly careful in messages sent after or in response to the first request. Numerous witnesses have learned to rue the innocent email commenting on their views of the committee and its members that is captured in a subsequent request.

Editor: Can trade secrets be protected? What about the attorney-client privilege?
Sopko: The courts have ruled that Congress does not have to recognize these privileges, but they can be protected, particularly if you know how to negotiate with the committee members and their staff. Most congressional members and staff with whom I've dealt recognize the importance of those privileges and do not want to harm a company by needlessly releasing trade secrets. However, as in most matters with congressional oversight, these things must be negotiated on a case-by-case basis.

Editor: To what extent does the trial bar feed off disclosures made in connection with congressional investigations? What strategies can be used to mitigate this risk?
Sopko: There is a bit of that actually going both ways. The plaintiff's bar feeds off disclosures made before committees resulting in litigation. Likewise, material disclosed in the course of litigation often ends up on the Hill and becomes the basis of investigations. Probably one of the best-known examples came out of the tobacco litigation.

Mr. Sopko's advice - that trade secret disclosure protocols should be negotiated before disclosures are made to a potentially leaky Congressional committee - makes great sense.

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