Hytera says evidence shows classified U.S. government investigation of company

Hytera Communications has “incontrovertible evidence” the U.S. government is conducting a classified investigation into the company and asked a federal court that “discoverable information” from the initiative be produced prior to a criminal trial scheduled for later this year, according to a recent Hytera legal motion.

In a filing submitted yesterday to the U.S. District Court of Northern Illinois Eastern District, an attorney representing the China-based LMR manufacturer states that agents for both the FBI and U.S. Customs Border Protection (CBP) separately detained and questioned a Hytera in-house lawyer who entered the U.S. in February. In addition, a redacted document produced by the U.S. government “appears to have classified markings redacted out of it,” according to the Hytera filing.

Lawyers representing Hytera Communications previously have indicated that company officials believe the U.S. government “is surveilling it as part of a national-security investigation” and last fall asked the U.S. district court to conduct a hearing under the Classified Information Procedures Act (CIPA), according to the filing. This motion was denied in December, with the court order noting that Hytera Communications had provided nothing more than a “speculative basis to believe that discoverable classified information is being withheld,” the filing states.

But Hytera Communications believes that recent events provide a more substantive basis for its suspicion of a classified investigation, which is why the company is renewing its motion for a CIPA hearing.

“Hytera now has incontrovertible evidence that the [U.S.] government is indeed conducting a classified investigation into Hytera, and possesses discoverable information that must be produced,” Hytera’s renewed motion states.

Highlighted in the motion was the plight of Lingqing (Leon) Su, an in-house attorney for Hytera Communications who traveled from China to the U.S. to meet with Hytera’s outside counsel about the company’s ongoing civil litigation with Motorola Solutions. Su declared that, on Feb. 12, he was detained and questioned—without receiving Miranda warnings—by CBP officials in New York City and by FBI officials in Cleveland.

“Upon my arrival at John F. Kennedy Airport in New York City, U.S. Customs and Border Protection officials (‘CBP’) detained me and questioned me on security topics, including repeatedly asking me about connections I and others may have to the Chinese government,” Su states in his declaration.

“Upon my arrival at my final destination of Cleveland Hopkins International Airport, FBI agents were waiting for me at the gate and questioned me on a variety of topics, including any connections I and others may have to the Chinese government.”

Su also had his cell phones imaged by the CBP while in New York City—something Hytera Communications noted in the renewed motion for a CIPA hearing.

“Customs agents also imaged Mr. Su’s cell phones, notwithstanding that he is a lawyer for Hytera tasked with overseeing the very same litigation the government repeatedly claims is inextricably intertwined with these criminal proceedings,” Hytera Communications’ filing states.

“Worse, the government has refused to return the images of this Hytera lawyer’s cell phones, despite Hytera’s request for the information, thereby utterly disregarding the fact that Hytera’s attorney’s phones contain privileged information about this very case. The government has also refused to turn over reports of Mr. Su’s interview, and once again, has refused to confirm or deny whether a classified national-security investigation into Hytera exists.”

This behavior by the U.S. government is inappropriate, according to Hytera Communications’ renewed motion.

“The surveillance of and invasive questions posed to Hytera’s in-house attorney about his affiliations with the Chinese government, along with the imaging of his electronic devices, confirm both that the government is surveilling Hytera and its employees for national security reasons, and that the government possesses relevant and discoverable information about Hytera, its employees, and this case,” the Hytera Communications filing states.

Su’s encounters with U.S. federal agents were not the only evidence that Hytera Communications cited as support for its renewed motion for a CIPA hearing.

“In addition, Hytera has identified a document in discovery—a translation of an email to a Hytera employee, attached as Exhibit D [Editor’s note: a document that has been sealed from public viewing]—that appears to have classified markings redacted out of it,” the renewed motion states. “Hytera asked the government to produce an unredacted copy of this document so that it could see whether classified markings had been applied to the document, but the government has refused.”

Not surprisingly, the U.S. Department of Justice (DoJ) offered a very different perspective on the matter.

“Hytera is entitled to none of the information it seeks,” according to a DoJ lawyer’s letter submitted in response to Hytera Communications’ assertions.

In the response letter, DoJ acknowledged that CBP and FBI agents interviewed Hytera lawyer Su on Feb. 12 but denied that the interviews were part of a larger U.S. government effort associated with the DoJ’s criminal case against Hytera Communications, which is scheduled to begin trial on Oct. 1.

“We did not interview Mr. Su, and the CBP and FBI agents who did didn’t do so at our request or to further our case,” the DoJ letter states.

“Hytera has not claimed (and cannot claim) that Mr. Su was questioned about any topics related to the trade-secret case against Hytera, such as Motorola, DMR products, the details of the criminal (or even the civil) litigation, or any of the witnesses, evidence, or events involved. Again, we did not direct the interviews; they were initiated and conducted by CBP and FBI agents not associated with the criminal matter.”

With this in mind, the DoJ letter outlines its legal reasoning for its stance that U.S. District Court Judge John Tharp should deny Hytera Communications’ renewed motion for a CIPA hearing.

“In your letter, [Hytera Communications’ lawyer] wrote that the interviews of Mr. Su ‘confirm that the government is surveilling Hytera and its employees for national-security reasons.’ On our call, you stated a ‘working presumption’ that Mr. Su was ‘pulled aside because he’s a Hytera employee,’” the DoJ letter states. “As you are aware, we are precluded from confirming or denying the existence of certain investigations or materials.

“We do, however, point out that nothing in your letter justifies these presumptions. Hytera has not alleged that Mr. Su was asked about details of his employment, other Hytera employees or their connections to the Chinese government, or Hytera’s connections to the Chinese government.

“Indeed, Hytera does not even state that Mr. Su was questioned about his work at Hytera at all. And to the extent your letter attempts to leverage baseless accusations about prosecutorial misconduct into already-rejected discovery requests, that attempt is misplaced. You have cited no basis under Rule 16 or any other theory of discoverability entitling Hytera to information about separate and unrelated investigations.”