Melinda L. Haag

Haag knows well both the prosecution and defense sides of trade secrets law. She focuses on complex white-collar and civil rights cases and has been lead or co-lead counsel in more than 20 jury and bench trials. Formerly, she served as U.S. attorney for the Northern District, a region where the proliferation of tech companies made trade secrets a prosecutorial priority.

Appointed to the Northern District post by President Barack Obama in 2010, Haag said she was instructed to maintain the usual list of targets--crimes involving drugs, guns and violence--and to drill down to critical local issues. "Our marching orders were to invest in what's important to the district, and trade secrets fit into that category. It was certainly on our list of priorities, and it remains so after I've gone." She moved back to Orrick in 2015.

For the past several years, she and colleagues have represented Uber Technologies Inc.'s former CEO Travis Kalanick through a thicket of legal entanglements, including multiple government investigations and a flurry of litigation, including the Waymo v. Uber trade secrets case.

Haag said a key takeaway from her time working for the government is the critical importance of choosing which cases to file as rivalries emerge on the rough-and-tumble playing field of highly aggressive tech companies. "Be careful when competitors are coming to you to report what they call trade secrets theft," she advised. "A bias is built in when you're the purported victim."

That became clear from Haag's defense perspective when she, Walter F. Brown and Randall S. Luskey at Orrick took up the defense of six former Jawbone employees, accused with much fanfare by the U.S. attorney's office of trade secrets theft when they left the failing and now-defunct fitness tracking company to join Fitbit Inc.

Haag and colleagues dismantled the prosecution's case against the first of the six to go to trial, leading to a quick acquittal and the dismissal of charges against the other five. At the January 2020 courtroom showdown, Haag performed two crucial cross-examinations of government witnesses: Jawbone's CEO and the agent who investigated the case.

The CEO came off as cavalier about having sought defendant Katherine Mogal's criminal prosecution, offending the jury, Haag said. The agent was worse, claiming Mogal sought to conceal Jawbone trade secrets on backup software for her personal email account when she left. Mogal said she'd forgotten it was there and never used it. Ordered to turn the data over to the prosecution, she did so--but the agent said he searched what Mogal produced and did not find it, which was allegedly further evidence of her guilt. U.S. v. Mogal, 18-cr-00259 (N.D. Cal., filed June 14, 2018).

"We knew that was wrong and we could prove it," Haag said. "We tried to maintain poker faces at the defense table. I explored it with him and he was completely unable to explain what he had done. It wasn't a pleasant experience for him."

The jury took less than two hours to acquit Mogal of all charges.

--John Roemer