You’ve probably heard by now about the “state secrets privilege” which is open to all kinds of abuse. So many kinds of abuse, in fact, that Robert Farley and Davida Isaacs appear to have identified a whole new kind of abuse:
As it happens, Professor Davida Isaacs and myself have a paper coming out in the Summer 2009 Berkeley Technology Law Journal on the use of the State Secrets Privilege in litigation on military procurement. Long story short, a small firm named Crater developed a coupler that could conceivably be used to help tap undersea cables. Lucent Technologies developed an interest in the coupler and played around with it for a bit until it decided that the device was, indeed, appropriate for a contract with the Navy. Lucent then, essentially, told Crater to go pound sand. Litigation resulted, and in discovery Crater attempted to gain access to documentation regarding the use of the device. The Navy claimed State Secrets Privilege in order to avoid disclosing such documentation. This eviscerated Crater’s case.