[dragonwriter]

> But at some point, if you're truly innocent, I'm sure the best lawyers in the business could find a way for you to say "I'm not guilty" without hurting yourself.

In a perfect world, being actually innocent would mean zero risk of conviction of a crime with a vigorous and dedicated defense, no matter what the prosecution did.

We don't live in a perfect world, and it is, in fact, quite possible for a situation to exist where you are actually innocent and on-balance have better expected results by invoking the Fifth.

Even accepting potential negative consequences that may have outside of the criminal realm.

[throwaway729]

I agree in principle and understand your point.

But I have a hard time imagining a specific scenario where you're accused of IP theft and a lawyer can't find a way to say "my client is not guilty of IP theft" without compromising their client.

At the very least, at some point, the client is going to have to enter that "not guilty" plea.

[dragonwriter]

> But I have a hard time imagining a specific scenario where you're accused of IP theft and a lawyer can't find a way to say "my client is not guilty of IP theft" without compromising their client.

Okay, how about where they actually physically have the documents that are the subject of the case, cooperating with discovery would reveal them, but they didn't actually use them in the new job or take them with intent, even though the other people accused alongside did actually steal smaller numbers of documents, and use them in the new job without your clients knowledge, so that your only real hope besides gambling on a jury's inferences of intent is that a criminal case is never initiated because your clients possession of the information doesn't come to light.

> At the very least, at some point, the client is going to have to enter that "not guilty" plea.

A plea is non-testimonial, does not open up cross examination, and does not open up threat of perjury. And, no, they don't have to do that if criminal charges are never filed, which is exactly what you are hoping for if you are invoking the Fifth in other circumstances because of potential future criminal prosecution.

[throwaway729]

My assumption is that intentionally copying IP onto a personal device and removing that device from the office -- regardless of any actual intent to use that data -- is still theft. Which would make the former employer's claims truthful.

It's super unclear to me how you would accidentally retain a copy digital documents...?

Like I said, it's hard to imagine this scenario actually happening. But for good measure:

Lesson #3: Leave work at work and startup at home.

[mcbits]

I actually did something like this long ago (pre-2000) - emailed a set of detailed and very confidential sales spreadsheets to my personal email. It wasn't "theft" (and AFAIK nobody even noticed). It was so I could convert the spreadsheets to a proper Access database on my own time, since that's not what I was paid to do but it made my job a lot easier.

I would probably have been in a world of shit if anything came of it, though.

[throwaway729]

I've worked for employers who were 100% convinced this is theft, even without some intent to use that information, and even discussed very similar hypotehticals in on boarding.

[mcbits]

Right, that's why I mentioned how long ago this was because very few employers were as Orwellian about this stuff as they are today. Calling it theft was hyperbole then and is hyperbole today.

[kelnos]

I'm actually not sure it's theft. It might violate confidentiality agreements, and using those files outside the scope of the former employer might constitute unlawful use of trade secrets, but simply copying the files and bringing them home may not actually be a criminal act.

(I'm just putting this out there because I don't actually know, and hope someone else knows the answer. Not attempting to be authoritative.)

[Consultant32452]

You can't selectively plea the fifth. You can't go into court, say things in your favor, and then clam up and plea the fifth when things get dicey for you. As soon as you start testifying in your defense you have waived the right and you'll be held in contempt if you take the fifth afterward. It would be unusual, but you can be imprisoned indefinitely without a trial/conviction until the judge decides to release you or you resolve the issue that put you in contempt.

[kelnos]

This bit is different: Levandowski has not been charged with a crime. There is no plea, guilty or not guilty, for him to enter. He is not even the defendant in the civil suit.

He (or his lawyer) believes that talking about these documents could open him to criminal liability (whether he's guilty of anything or not), so he is choosing to remain silent.

Now, if other evidence is unearthed and Levandowski is indeed charged with a crime, and it made it to trial, that would be his time to enter in a plea of not guilty.

[throwaway729]

Right, things are a bit confused at the moment because the parent's hypothetical is so close to the case at hand.

I'm addressing parent's concrete hypothetical -- where the person accused of theft is the ceo of the company.

> that would be his time to enter in a plea of not guilty.

I think I'm wrong here, actually :)

dragonwriter provides a compelling explanation, elsewhere in this thread, for why entering a "not guilty" plea is very different from stating "I'm not guilty" outside the context of entering a plea.