Discovery matter

📄 Discovery matter — Thursday, August 3, 1995

Address:

C:\DEPT103\CRIMINAL\1995\AUG\3\DISCOVERY-MATTER.DOC

TRIAL

▲ Day 128 of 167

◀ Court adjournment Direct examination of Dr. John Gerdes (morning, part 1) ▶

Date: Thursday, August 3, 1995 • Utterances: 23

A brief pre-jury administrative session in which the defense raised concerns about proprietary information in Dr. Gerdes' government grant proposal, which the prosecution had requested in discovery. Judge Ito resolved the dispute by ordering the document held under court custody, available only for in-court inspection by counsel, with a sidebar required before any cross-examination could reference it.

# 1 (Appearances as heretofore noted.)

# 2 (Janet M. Moxham, CSR no. 4855, official reporter.)

# 3 (Christine M. Olson, CSR no. 2378, official reporter.)

# 4 (The following proceedings were held in open court, out of the presence of the jury:)

# 5 THE COURT:

All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Cochran, Mr. Thompson, Mr. Scheck, Mr. Blasier. The People are represented by Mr. Clarke and Mr. Darden. Anything we need to take up before we begin? Mr. Thompson.

# 6 MR. THOMPSON:

The Prosecution asked for discovery that Dr. Gerdes filed with the national grant program for the national institute of standards and technology. We have received from Dr. Gerdes' lab a copy of that grant proposal; however, there are serious concerns here about valuable proprietary information contained in this proposal. This is a proposal for a highly competitive U.S. government technology grant. The United States government found this proposal sufficiently promising with regard to the development of economically valuable new biotechnology that they awarded Dr. Gerdes and his laboratory 1.7 million dollars to pursue it. However, the technology has not yet been developed. His laboratory has invested a considerable amount of time and money into developing this valuable technology and they have proprietary rights to it; therefore, we are extremely concerned about the public release of this information.

# 7 THE COURT:

Counsel, what I'm going to do is I'm going to direct that no copies are made of this proposal, that it remain here in the custody of the clerk, be available for inspection by counsel for either party, and that will be before any cross-examination goes into it we, will have a side bar to determine whether or not that is an appropriate area of cross-examination.

# 8 MR. THOMPSON:

That sounds quite acceptable, your Honor.

# 9 THE COURT:

And that at the conclusion of Dr. Gerdes' testimony the copy we have will be returned to him.

# 10 MR. THOMPSON:

That's fine, your Honor. Shall I give the copy to the clerk then?

# 11 THE COURT:

Please. Mr. Clarke, have you had the opportunity to look at this?

# 12 MR. CLARKE:

I have not.

# 13 THE COURT:

All right.

# 14 MR. CLARKE:

Just one request and that is could we simply be able to read it upstairs. I expect it is lengthy and detailed.

KEY QUOTE

# 15 (Shakes head from side to side.)

# 16 MR. CLARKE:

All right.

# 17 THE COURT:

Okay.

# 18 MR. THOMPSON:

Thank you, your Honor.

# 19 THE COURT:

All right. Deputy Magnera, let's have the jury, please.

# 20 (Brief pause.)

# 21 (A conference was held at the bench, not reported.)

# 22 (The following proceedings were held in open court, in the presence of the jury:)

# 23 THE COURT:

All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, everybody.

THE JURY: Good morning.

Temperature

procedural

Key Quotes (3)

Mr. Thompson

The United States government found this proposal sufficiently promising with regard to the development of economically valuable new biotechnology that they awarded Dr. Gerdes and his laboratory 1.7 million dollars to pursue it.

Establishes the scientific and financial credibility of Dr. Gerdes' work, framing the grant proposal as legitimately sensitive proprietary material rather than a document the defense is hiding.

Lance A. Ito

I'm going to direct that no copies are made of this proposal, that it remain here in the custody of the clerk, be available for inspection by counsel for either party, and that will be before any cross-examination goes into it we will have a side bar to determine whether or not that is an appropriate area of cross-examination.

Ito's ruling threads the needle — giving prosecution access while protecting proprietary content from public disclosure, and reserving judgment on relevance.

George Clarke

Just one request and that is could we simply be able to read it upstairs.

Clarke's request to take the document out of the courtroom was silently denied by Ito shaking his head — a small but telling moment about how tightly the judge was controlling this document.

Evidence (1)

Informal

Dr. Gerdes' grant proposal submitted to the National Institute of Standards and Technology (NIST), for which his lab received $1.7 million in federal funding to develop new biotechnology

Surrendered to court clerk for restricted in-court inspection only; copies prohibited

Notable Exchanges (1)

George Clarke•Lance A. Ito

Clarke asked if he could take the grant proposal upstairs to read it at length; Ito responded by silently shaking his head side to side, denying the request without a word.

deadpan/controlling

Light Moments (1)

Lance A. Ito

Ito denied Clarke's request to read the document upstairs with a silent head shake — no words, just a firm no — prompting Clarke to simply say 'All right.'

Witness Demeanor

(Shakes head from side to side.) — Judge Ito nonverbally denying Clarke's request

(Brief pause.)

(A conference was held at the bench, not reported.)

Objections

None recorded

Proceeding 7936 • 23 utterances

Criminal Trial

Department 103