Anatomy of the Murder of Democracy

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Citizen Advocate: Objection. Your Honor, Ms. Brunwasser's question about waiver of trade secret rights presumes facts/conclusions not in evidence, it presumes the existence of the trade secret rights in the first place. We object, and ask that the question be stricken from the record.

Judge: Sustained. Ms. Brunwasser, I don't think you've established that private commercial trade secrets actually exist by law in public elections, such that you can move on to how they might be waived or destroyed. Without that foundation being laid, I'm not going to allow you to question the witness as to how something that you've not proven even exists can be waived or destroyed, since that question is premature. Moreover, my legal research indicates that there's no published appellate court precedent for the notion that trade secrets exist at all in public elections. Aren't you just assuming that the self-interested claims of vendors and their election official partners are, in fact, the Law? This is still a question of first impression in this district and circuit, and in every other one that I can see.

Attorney Brunwasser: Very well, Your Honor, I'll rephrase and lay this foundation.

Attorney Brunwasser: Mr. Expert witness, if you're familiar with the elements of trade secrecy, please name them:

Expert Witness: Yes, I'm familiar with them. Trade secrets are commercial information of any kind for which reasonable efforts to maintain secrecy have been maintained, and which imparts some commercial advantage to the owner of the trade secret.

Attorney Brunwasser: Concerning the "commercial advantage" element benefiting the owner of the trade secret, does a corporation or other business entity ever do anything major that is not for its commercial advantage?

Expert witness: No, the very purpose of their existence is to make a profit for the shareholders so it would in fact be legally improper for them to do anything disadvantageous to their commercial interest. Something as big as a trade secret would always be for their commercial advantage. Nobody's in a better position to assess their advantage or disadvantage than the corporation themselves.

Attorney Brunwasser: So, trade secrets then are commercial information for which reasonable efforts to maintain secrecy have been maintained?

Expert witness. Yes.

Attorney Brunwasser: Is the word "information" narrowly defined?

Expert witness: No. It includes data, words, ideas, customer lists, anything for which secrecy has been maintained with reasonable efforts.

Attorney Brunwasser: So, is it fair to say then that "trade secrets" consist of anything a corporation tries to keep secret?

Expert witness: Well, I wouldn't put it that way, but that's true, yes.

Attorney Brunwasser: So then, when trade secret software is introduced into public elections, are reasonable efforts made to maintain its secrecy?

Expert witness: Yes, confidentiality agreements with the local counties or purchasers in the government are entered into.

Attorney Brunwasser: Does the commercial trade secret then survive its introduction into the public elections?

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Paul Lehto practiced law in Washington State for 12 years in business law and consumer fraud, including most recently several years in election law, and is now a clean elections advocate. His forthcoming book is tentatively titled DEFENDING (more...)

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