A Plan Only Dilbert Could Love

As a lawyer, I love defending engineers in depositions. They tend to listen to the question, answer only the question that’s asked, and never volunteer information. In short, they make great witnesses. But according to a case decided recently by the U.S. Circuit Court of Appeals,they make lousy crooks. The facts make for some interesting reading. A company called Wyko signed a contract with a Chinese company to deliver some machines used in the “swabbing-down” process in tire manufacturing (editor’s note — I have no clue what swabbing-down is). The only hitch in the plan was the fact that Wyko had never actually built that type of machine. Goodyear, however, used that exact type of machine in its operation. And this is where it gets a little weird. In the midst of this, Goodyear called Wyko to repair some equipment in its plant. This appears to be a total fluke. But Wyko, seizing the opportunity, did not send maintenance personnel, but instead sent two engineers, Sean Howley and Clark Roberts. The opinion does not specify if the two engineers wore a disguise:


but for fun, let’s just imagine they did. Howley and Roberts were told that Goodyear did not allow cameras in the facility and they had to pass through a security checkpoint before entering. In addition, they signed a confidentiality agreement, promising not to divulge Goodyear trade secrets. But temptation is a terrible thing, even for engineers apparently, and once inside, and while out of the view of the Goodyear personnel, the two shot photos with a cell phone. The two sent the photos via e-mail to co-workers admitting that they took the pictures while Goodyear personnel weren’t looking. The e-mails also told the co-workers to “tread carefully” because Goodyear was suspicious (apparently with good reason). These e-mails are what prosecutors like to call “state’s exhibit A.” A co-worker with a conscious tipped the FBI off about the scheme and the engineers wound up being indicted under the federal Economic Espionage Act.

Given that they were caught pretty much red handed, the engineers followed the old legal rule, “when the facts are against you argue the law.” And that led them to contend that the information wasn’t a trade secret because Goodyear didn’t take adequate steps to prevent the theft. The court was unimpressed. It affirmed the convictions, finding that Goodyear only needed to take “reasonable” not failsafe methods. And Goodyear satisfied that burden.