Court Denies Huawei Bid to Access BIS-Restricted Discovery Material
The U.S. District Court for the Eastern District of New York this month denied a request from Chinese telecommunications giant Huawei Technologies Co. to help the company obtain access to certain discovery documents that are restricted by the Bureau of Industry and Security. Judge Cheryl Pollak said that while DOJ marked hundreds of thousands of documents at a lower level of classification than BIS, which would give Huawei greater access to the records, the documents are "still subject to further review by BIS" (United States v. Huawei Technologies, E.D.N.Y. # 18-00457).
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
As a result, DOJ still needs a license from BIS to share full access to the documents, the court said, noting BIS' previous willingness to show flexibility in allowing the firm to access particular sensitive records.
Pollak also denied parts and granted parts of Huawei's motion to modify the judicial protective order in the case. The judge refused to allow certain documents describing "sensitive discovery material" to be allowed in mainland China and rejected Huawei's bid to alter the definition of "sensitive discovery material."
However, Pollak partially sided with Huawei on the question of whether to establish a deadline for the U.S. to respond to de-designation requests, giving the U.S. a 60-day deadline. If the government can't meet that deadline, the court ordered the U.S. to meet with Huawei to "come to an agreement on an appropriate extension of time."
The issues arose ahead of the January 2026 trial in the government's case against Huawei on racketeering, trade secret theft and other charges (see 2002130045). Huawei objected to various restrictions imposed on its discovery requests and ability to use documents procured in discovery, claiming the issues have muddled its trial preparation efforts (see 2408090044). So far in the case, the court has designated three levels of confidential information, with discovery material being the lowest and sensitive discovery material being the intermediate tier.
The company asked for a modification of the judicial protective order to allow defense counsel to share "attorney work product and related emails" describing sensitive discovery material, among other documents, with Huawei in mainland China. Pollak refused the request, citing the government's claim that the risks of "interception" of the material, both to witnesses and to the trade secrets of both victims and financial institutions, and national security concerns, call for the documents to be kept out of China.
The court added that "when balanced against the government's interest in minimizing the potential security threat, the risk of prejudice to defendants appears relatively low." Pollak said that the U.S. has made various concessions, including allowing Huawei's interview with witnesses, permitting Huawei personnel free passage to the U.S. to view sensitive material and allowing sensitive material to be reviewed in over six foreign countries.
Huawei also wanted to modify the definition of "sensitive discovery material" to require the U.S. to show that "less restrictive means" than the designation as sensitive discovery material wouldn't be sufficient to protect a "legitimate public interest in confidentiality." The court rejected this motion as well, noting that the government must already have a "good-faith belief" that the material fits under this designation and show good cause for the designation if challenged. This standard, coupled with Huawei's concession that the government hasn't abused the protective order's "broad designation language," decides the issue for the government, the judge said.
In a separate motion, Huawei asked for judicial help in getting greater access to documents marked as only discovery material by DOJ but separately restricted by BIS' export controls. Pollak said DOJ didn't need to show good cause for the BIS designation, finding that it was "outside the prosecution's control." The judge added that a court order requiring the government to apply for a license that complied with the protective order wouldn't alter BIS' review process.
Pollak said BIS has shown a "willingness to consider extending authorization once they have had the opportunity to review the specific technology and related concerns." In addition, Huawei hasn't shown "any concrete harm imposed by this designation and the refusal of BIS to bypass its evaluation procedures beyond the inconvenience of forcing their clients to travel from China to review the material.”