Response by PacMar Technologies LLC as to Martin Kao re 93 Objections to and Appeal from Dispositive Order — USA v. Kao (Dkt. 95)

Record facts

U.S. District Court for the District of Hawaii · No. 1:21-cr-00061-LEK · Doc. 95 · 2023-03-23 · Docket on CourtListener

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KOBAYASHI SUGITA & GODA, LLP 
DAVID M. LOUIE 
 
2162 
JESSE W. SCHIEL 
 
7995 
First Hawaiian Center 
999 Bishop Street, Suite 2600 
Honolulu, Hawaii 96813 
Telephone: (808) 535-5700 
Facsimile: (808) 535-5799 
E-mail: 
dml@ksglaw.com; 
jws@ksglaw.com 
 
Attorneys for Movant 
PACMAR TECHNOLOGIES LLC f/k/a 
MARTIN DEFENSE GROUP, LLC f/k/a 
NAVATEK LLC 
 
IN THE UNITED STATES DISTRICT COURT 
 
FOR THE DISTRICT OF HAWAII 
 
UNITED STATES OF AMERICA, 
 
 
 
Plaintiff, 
 
 
vs. 
 
MARTIN KAO, 
 
 
 
Defendant. 
CR. NO. 21-00061 LEK 
 
PACMAR TECHNOLOGIES LLC’S 
RESPONSE TO OBJECTIONS TO 
AND APPEAL FROM DISPOSITIVE 
ORDER [DOCUMENT 92] OF 
MAGISTRATE JUDGE; EXHIBITS A 
AND B; CERTIFICATE OF 
SERVICE 
 
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TABLE OF CONTENTS 
 
Page 
 
 
-i- 
 
 
I. 
Introduction ..................................................................................................... 1 
II. 
Relevant Background...................................................................................... 3 
A. 
Factual Background .............................................................................. 3 
B. 
Procedural Background ........................................................................ 5 
III. 
Standard of Review......................................................................................... 7 
IV. 
Responses to Specific Objections ................................................................... 9 
A. 
The Magistrate Judge’s Determination That Defendant Kao 
Does Not Have A Privacy Interest In The Company Cellphone 
Was Not Clearly Erroneous. ............................................................... 10 
B. 
The Magistrate Judge’s Decision To Issue His Ruling While 
Defendant Kao’s Criminal Case Is Still Pending Was Not 
Clearly Erroneous. .............................................................................. 13 
C. 
The Magistrate Judge’s Finding That Defendant Kao Had No 
Reasonable Expectation of Privacy In The Company Cellphone 
Was Not Clearly Erroneous. ............................................................... 14 
D. 
The Company Cellphone Data Is Not Defendant Kao’s Work 
Product. ............................................................................................... 15 
E. 
The Specific Contents of the Cellphone Data Are Irrelevant To 
PacMar’s Right To The Return Of The Property. .............................. 17 
F. 
No Alternatives to a Complete Return of PacMar’s Property 
Were Appropriate. .............................................................................. 18 
V. 
Conclusion .................................................................................................... 18 
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TABLE OF AUTHORITIES 
 
Page(s) 
Federal Cases 
Mintz v. Mark Bartelstein & Associates, Inc., 
885 F. Supp. 2d 987 (C.D. Cal. 2012) ................................................................ 11 
In re Scranton Housing Authority, 
487 F. Supp. 2d 530 (M.D. Pa. 2007) ............................................................... 8, 9 
United States v. Collins, 
No. 11-CR-00471-DLJ PSG, 2012 WL 3537814 (N.D. Cal. Mar. 
16, 2012) ............................................................................................................... 8 
United States v. Wahchumwah, 
710 F.3d 862 (9th Cir. 2013) .............................................................................. 11 
Federal Statutes 
U.S.C. § 636(b)(1) ...................................................................................................... 2 
28 U.S.C. § 636 ...................................................................................................... 7, 9 
28 U.S.C. § 636(b)(1)(A) ....................................................................................... 7, 8 
Freedom of Information Act .......................................................................... 2, 11, 15 
Rules 
Crim. L.R. 12.1 .......................................................................................................... 7 
Crim. L.R. 57.3 .......................................................................................................... 7 
Crim. L.R. 57.4 .......................................................................................................... 7 
Fed.R.Crim.P. Rule 41(g) ............................................................................ 1, 3, 6, 15 
 
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PACMAR TECHNOLOGIES LLC’S RESPONSE TO OBJECTIONS 
TO AND APPEAL FROM DISPOSITIVE ORDER [DOCUMENT 92] 
OF MAGISTRATE JUDGE 
Movant PACMAR TECHNOLOGIES LLC f/k/a MARTIN DEFENSE 
GROUP, LLC f/k/a NAVATEK LLC (“PacMar” or the “Company”) hereby 
submits its Response to Defendant MARTIN KAO (“Defendant Kao”)’s 
Objections to and Appeal from Dispositive Order [Document 92] of Magistrate 
Judge (“Objections”). 
I. 
INTRODUCTION 
Defendant Kao’s Objections to Magistrate Judge Trader’s Order Granting 
PacMar’s Motion for Return of Property Pursuant to Rule 41(g) of the Federal Rules 
of Criminal Procedure (the “Order”) merely restate the same arguments raised 
before and rejected by Judge Trader. 
PacMar’s request is simple: a return of its Company Cellphone and/or 
Cellphone Data1 following the Department of Justice (“DOJ”)’s seizure of the 
Company Cellphone during its investigation into criminal activities perpetrated by 
Defendant Kao during his employment with PacMar.  The DOJ, who remains in 
                                          
1 The property at issue is an Apple iPhone 11 Pro (IMEI 353247100759018), 
associated with the phone number ending in 0371 (the “Company Cellphone”) 
and/or the data stored therein (the “Cellphone Data”).  The DOJ has stated that it 
does not object to the return of a full copy of the contents of the Company Cellphone, 
but that it does intend to retain the physical device.  See Factual Background, infra 
§ II.B. 
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possession of the Company Cellphone, has confirmed that it has no objection to 
returning the Cellphone Data to PacMar.  The DOJ similarly returned PacMar’s 
servers to it following its investigation into Defendant Kao’s criminal conduct. 
Defendant Kao has objected to the return of PacMar’s property based on a 
non-existent asserted right to privacy in the data stored on the Company Cellphone, 
claims which have been proven to be meritless by PacMar’s presentation of the 
applicable policies and conditions which governed Defendant Kao’s use of the 
Company Cellphone at all times that it was in his possession.  Defendant Kao 
similarly attempts to mischaracterize PacMar’s request for the return of the 
Company Cellphone as a government search for which a warrant would be 
required—which it is not—and alternatively a request to the DOJ under the Freedom 
of Information Act—which it also is not. 
For the foregoing reasons, as discussed more fully below, PacMar respectfully 
requests that this Court affirm Judge Trader’s Order.2 
                                          
2 As discussed below, PacMar submits that this Court should review Defendant 
Kao’s Objections under a clearly erroneous standard, as is proper under 28, U.S.C. 
§ 636(b)(1).  However, Defendant Kao’s Objections fail under either a clearly 
erroneous or de novo standard of review. 
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II. 
RELEVANT BACKGROUND 
A. 
Factual Background3 
Commencing in 2008, and continuing through his tenure as President and 
CEO, PacMar issued a company cellphone Defendant Kao, for use in PacMar’s 
business operations.  Defendant Kao’s receipt and use of the company cellphone was 
subject to PacMar’s company cellphone policies.  See Exhibit 1 to Motion at C-22, 
¶ 6 (“If an employee is issued a company cell phone, this may not be used for 
personal phone calls unless authorized by the Company prior to usage.  All rules 
from this policy applies to company issued cell phones.” (emphasis added)); see 
also id. at C-23, § I (“Computers, computer files, electronic communication 
systems, internet access, and software furnished to employees are Company 
property intended to be used solely for business purposes . . . .  All work done with 
Company resources will be owned by the Company or will be deemed assigned 
to the Company.” (emphasis added)); Motion at Declaration of James Toshizo Ota 
(“Ota Decl.”) ¶ 3.  The handbook further provides that “although incidental and 
                                          
3 Because Defendant Kao raises no arguments that were not presented to Judge 
Trader—as well as fully briefed and argued—PacMar includes its Motion for Return 
of Property Pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure (the 
“Motion”) and Reply in support of the Motion (the “Reply”) here as Exhibits A and 
B for convenience of reference.  References to Exhibits herein are made to the 
attachments and declarations previously provided with the Motion and Reply.  
Additional historical factual background regarding PacMar is provided in the Motion 
but is not repeated here for sake of efficiency. 
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occasional personal use of e-mail is permitted by the Company,” the Company may 
access and disclose personal emails.  Exhibit 1 to Motion at C-23, § III.  Defendant 
Kao acknowledged his receipt and understanding of these policies.  See 
Acknowledgement of Employee Handbook, attached as Exhibit 2 to Motion. 
From and after 2018, as President and CEO of PacMar, Defendant Kao was 
responsible for oversight of all of PacMar’s business operations, including review 
and supervision of the development of its products and technologies, 
communications with external parties in obtaining its contracts and subcontracts, 
review and oversight of internal processes and procedures related to its employees 
and management, and various other duties typical of a President and CEO of a 
federal contractor.  PacMar continued to supply Defendant Kao with the use of a 
company-owned cellphone, subject to the same ongoing policies and conditions of 
use.  See Exhibit 3 to Motion, at § 4.1(a) (“Martin Defense Group sensitive 
information stored on electronic and computing devices whether owned or leased by 
Martin Defense Group, a User, or a third party, remains the sole property of Martin 
Defense Group.”); Exhibit 4 to Motion (“At any time upon request by Company 
management, the employee shall produce the mobile device for return or 
inspection.” (emphasis added)). 
Specifically, on or around January 2020, Defendant Kao was issued the 
subject Company Cellphone.  Defendant Kao’s Company Cellphone was registered 
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to a Company business account assigned to Defendant Kao, and was bought and paid 
for by PacMar (then Navatek LLC).  See, e.g., Exhibit 5 to Motion (addressed to 
Navatek LLC and showing “Device Payment Agreement” charges of $1149.99 at 
page 2); Ota Decl. ¶ 2. 
In late 2020, around the time the DOJ arrested Defendant Kao, it seized 
various property, including certain Company property,4 potentially relevant to 
Defendant Kao’s crimes in the instant case.  Among the items seized was Defendant 
Kao’s Company Cellphone. 
B. 
Procedural Background 
By letter dated December 21, 2022, PacMar, by and through its undersigned 
counsel, requested that the DOJ return the Cellphone and/or the Cellphone Data, 
attached as Exhibit 6 to Motion. 
On December 29, 2022, Mr. Nolan, on behalf of the DOJ, responded by email 
correspondence to the undersigned and Mr. Victor Bakke, counsel for Defendant 
Kao, advising Mr. Bakke of the DOJ’s intention to turn over the requested Cellphone 
Data to PacMar if no objection was made by 5:00 p.m. on Friday, January 6, 2023.  
See E-mail from C. Nolan, dated Jan. 6, 2023, attached as Exhibit 7 to Motion. 
On Thursday, January 5, 2023, Mr. Bakke informed Mr. Nolan that Defendant 
                                          
4 The DOJ returned most of the Company assets seized, including the Company's 
servers, shortly after they were downloaded. 
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Kao objected to the DOJ’s release of the Cellphone or the Cellphone Data to PacMar, 
but did not explain on what basis the objection was made.  See E-mail from V. 
Bakke, dated Jan. 5, 2023, attached as Exhibit 8 to Motion. 
By reply email on January 6, 2023, Mr. Nolan suggested to both counsel that 
the parties get the issue before the Court through a FRCP Rule 41(g) motion, and 
that the government would take no position (other than opposing any request to 
return the actual Cellphone).  See E-mail from C. Nolan, dated Jan. 6, 2023, attached 
as Exhibit 9 to Motion.  PacMar confirmed that it has no objection to the DOJ’s 
return of the Cellphone Data in lieu of the return of the physical Company Cellphone. 
See Motion at 6. 
Following the above-described correspondence between the Parties, PacMar 
filed its Motion for Return of Property on January 25, 2023.  On February 14, 2023, 
following full briefing of the issue by the Parties, Magistrate Judge Trader issued an 
Order Granting the Motion, holding: 
2. The Court adopts the arguments and authorities relied 
upon by PacMar and finds that the cellular phone 
previously issued by PacMar to Defendant Kao during his 
employment with Pacmar, Apple iPhone 11 Pro (IMEI 
353247100759018) (the “Company Cellphone”), and all 
of the business and personal data stored therein 
(hereinafter the “Cellphone Data”), are the property of 
PacMar pursuant to PacMar’s policies which were 
acknowledged by Defendant Kao and that Defendant Kao 
has no reasonable expectation of privacy with respect to 
the Cellphone Data. 
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3. Having found that PacMar is the owner of the Company 
Cellphone and Cellphone Data, the Court further finds that 
PacMar has met the requirements under Rule 41(g) of the 
Federal Rules of Criminal Procedure for the return of its 
property and is therefore entitled to the Government’s 
return of the Cellphone Data under Rule 41(g); 
4. Pursuant to the representations made in the 
Government’s Response, the Government shall retain the 
Company Cellphone, and a copy of the entirety of the 
Cellphone Data shall be returned to PacMar within thirty 
(30) days . . . . 
Order at 2–3. 
III. 
STANDARD OF REVIEW 
Under this District’s Criminal Local Rules: 
Dispositive motions shall be heard by a district judge and 
non-dispositive matters shall be heard by a magistrate 
judge, except as otherwise provided or unless otherwise 
ordered by a district judge. 
CrimLR12.1 (emphasis added).  The Local Rules do not explicitly define 
“dispositive” vs. “non-dispositive” matters.  However, Criminal Local Rules 57.3 
and 57.4 cite to the enabling statute for Magistrate Judge authorities and powers, 28 
U.S.C. Section 636.  28 U.S.C. Section 636(b)(1)(A) sets forth the types of motions 
that are considered “dispositive”: 
(A) a judge may designate a magistrate judge to hear and 
determine any pretrial matter pending before the court, 
except a motion for injunctive relief, for judgment on 
the pleadings, for summary judgment, to dismiss or 
quash an indictment or information made by the 
defendant, to suppress evidence in a criminal case, to 
dismiss or to permit maintenance of a class action, to 
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dismiss for failure to state a claim upon which relief 
can be granted, and to involuntarily dismiss an action.  
A judge of the court may reconsider any pretrial matter 
under this subparagraph (A) where it has been shown that 
the magistrate judge’s order is clearly erroneous or 
contrary to law. 
28 U.S.C. § 636(b)(1)(A) (emphasis added).  All other matters are considered under 
a clearly erroneous standard by a reviewing District Court Judge.  See id.  The 
Motion does not fall within the delineated categories of “dispositive” motions under 
the statute, and therefore is reviewed under the clearly erroneous standard. 
Defendant Kao, on the other hand, asserts that the Motion should be 
considered as a dispositive motion.  Objections at 6–8.  Defendant Kao cites two 
cases in support of this assertion, United States v. Collins, No. 11-CR-00471-DLJ 
PSG, 2012 WL 3537814 (N.D. Cal. Mar. 16, 2012), and In re Scranton Housing 
Authority, 487 F. Supp. 2d 530, 534 (M.D. Pa. 2007).  Neither is apposite on this 
Court’s proper standard of review. 
In Collins, movants sought both the return of seized property and the 
suppression of evidence, one of the specifically enumerated categories of 
“dispositive” motions under 28 U.S.C. § 636(b)(1)(A).  See Collins, 2012 WL 
3537814, at *6 (“In arguing for the separation and production of data and return of 
their non-targeted data and devices, the defendants principally rely on (1) statements 
made by Judge Jensen at a November 1, 2011 status conference observing that the 
government may only keep targeted data in its possession and (2) language in the 
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warrants themselves that compels the return, deletion of [sic] destruction of any 
data outside the scope of the warrant unless otherwise provided by law.” 
(emphasis added)).  In In re Scranton Housing Authority, the movant similarly 
sought to suppress evidence by return of seized property without allowing the United 
States to retain any of the seized property and specifically prayed for “Unsealing of 
Affidavit of Probable Cause in Support of Search Warrant, and for Return of 
Property and Information Seized.”  In re Scranton Hous. Auth., 487 F. Supp. 2d at 
532.  The Scranton opinion specifically held that 28 U.S.C § 636 “does not provide 
for the referral of [movant’s] entire action.”  Id at 535 (emphasis added). 
Conversely, the Motion at issue here would not dispose of any or all of the 
issues in the instant criminal case.  Nor does the Motion seek in any way to suppress 
evidence in the possession of the DOJ.  As stated previously, PacMar takes no 
position on the DOJ retaining a copy of any data extracted from Defendant Kao’s 
Company Cellphone.  It merely seeks the return of its property under the applicable 
procedural process. 
IV. 
RESPONSES TO SPECIFIC OBJECTIONS 
Whether the Court considers Defendant Kao’s objections under a clearly 
erroneous or de novo standard of review, the outcome is the same: PacMar is seeking 
the return of its property, to which Defendant Kao has no colorable claim of any 
right of privacy, as demonstrated by the exhibits and discussion in PacMar’s Motion 
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and Reply, and the Court should affirm the return of the Cellphone Data to PacMar.  
Defendant Kao’s specific objections are addressed here, using headings similar to 
those from the Objections for clarity of reference. 
A. 
The Magistrate Judge’s Determination That Defendant Kao Does 
Not Have A Privacy Interest In The Company Cellphone Was Not 
Clearly Erroneous. 
Defendant Kao complains that “while the U.S. has the contents of the phone, 
the U.S. does not necessarily know how Mr. Kao got the phone, whether he had any 
other phones, the extent of Mr. Kao’s control over MDG and its policies, Mr. Kao’s 
state of mind when he was using the phone, and other matters relevant to the issue 
of [sic] whether Mr. Kao had a reasonable expectation of privacy.”  Objections at 9. 
What the DOJ knows or does not know about the history of Defendant Kao’s 
use of the Company Cellphone is irrelevant.  It is undisputed that Defendant Kao 
was issued the Company Cellphone by PacMar, and PacMar bought and paid for 
both the Company Cellphone and the associated fees to Verizon.  See Exhibit 5 to 
Motion. 
Defendant Kao has no privacy interest in the Company Cellphone, as it was 
at all times subject to PacMar’s Information System Security Policies and 
Procedures Manual and Employee Mobile Device Policy.  See Exhibits 1, 3 and 4 
to Motion.  Under these policies, PacMar retained a right to “monitor equipment, 
systems, and network traffic at any time . . . .”  Exhibit 3 to Motion at 8; see also 
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Exhibit 1 to Motion at C-23 § I (“Computers, computer files, electronic 
communication systems, internet access, and software furnished to employees are 
Company property intended to be used solely for business purposes . . . .  All work 
done with Company resources will be owned by the Company or will be deemed 
assigned to the Company.” (emphasis added)).  PacMar had, at all times, a right to 
monitor and inspect such data to ensure proper use of the cellphone in furtherance 
of its business operations and security policies.5  Accord City of Ontario, Cal. v. 
Quon, 560 U.S. 746 (2010) (“Even if he could assume some level of privacy would 
inhere in his messages, it would not have been reasonable for [the employee] to 
conclude that his messages were in all circumstances immune from scrutiny.”); 
Mintz v. Mark Bartelstein & Associates, Inc., 885 F. Supp. 2d 987, 1000 (C.D. Cal. 
2012) (explaining “the Supreme Court found [in Quon] that the employee ‘had only 
a limited expectation’ of privacy in the text messages” but not in the other data 
associated with an employer-owned cellphone).6 
                                          
5 PacMar, as a federal contractor, is in fact under a heightened duty to maintain the 
security of its information and equipment, beyond that of a typical private-sector 
employer.  See Reply at Declaration of James Toshizo Ota (“Ota Supp. Decl.”) ¶ 6. 
6 Defendant Kao also suggests that his relinquishment of the cellphone to the DOJ 
was voluntary, see Defendant Kao’s Mem. in Opp. to Motion (the “MIO”) at 13 (“It 
is believed Mr. Kao cooperated with the US.”), further eroding any claims of an 
expectation of privacy in the cellphone and its data. See United States v. 
Wahchumwah, 710 F.3d 862, 867 (9th Cir. 2013) (“[A] defendant generally has no 
privacy interest in that which he voluntarily reveals to a government agent.”). 
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Defendant Kao also attempts to revive his baseless argument that because the 
Company Cellphone was in his possession, he should be treated as its owner.  
Defendant Kao goes so far as to ask, “Who at the company at the time Mr. Kao was 
CEO and owner would have asked Mr. Kao for personal information on his phone?”  
Objections at 10.  These arguments are misguided, as explained in PacMar’s Reply: 
PacMar’s communications with the DOJ, the DOJ’s 
Response to this Motion [Dkt. No. 84], and the prior 
conduct of the DOJ in returning PacMar’s other property 
seized at the time of Defendant Kao’s arrest all belie these 
claims.  See, e.g., Exhibit 9 to Motion (suggesting that 
PacMar file a motion for return of property in order to 
recover the data in question).  Just as the DOJ returned 
PacMar’s servers to it following the arrest of Defendant 
Kao, see Supplemental Declaration of James Toshizo Ota 
(“Ota Supp. Decl.”) ¶ 5, which server included all of its 
employees’ data and correspondences stored on it, so now 
is PacMar simply seeking the DOJ’s return of its Company 
Cellphone.7  PacMar’s servers and company cellphones 
are both company property and, as it did with PacMar’s 
server, the DOJ is prepared to return the Company 
Cellphone data to PacMar.8 
                                          
7 PacMar would be entitled to the return of the physical cellphone and all of its 
contents if not for the DOJ’s stated position that the cellphone is being kept for use 
as evidence in further potential criminal matters. 
8 PacMar’s policies treat all company-issued equipment, including computers, 
servers, accounts, and cellphones in the same way.  See Exhibit 3 to Motion at 7 
(“Martin Defense Group sensitive information stored on electronic and computing 
devices whether owned or leased by Martin Defense Group, a User, or a third party, 
remains the sole property of Martin Defense Group.”). 
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Reply at 4.  If Defendant Kao was using the Company Cellphone for personal use, 
such use was at his own risk and subject to the Company’s policies just the same as 
any non-business use by Defendant Kao on the Company’s server.  Defendant Kao 
cannot credibly argue that he was unaware of the right for PacMar to inspect the 
Company Cellphone at all times, as the principal executive officer of the Company, 
in charge of supervising and overseeing the development, implementation of, and 
compliance with said policies.  See Ota Supp. Decl. ¶ 7.  Defendant Kao had no right 
to privacy in the device, as the Magistrate Judge correctly found, and his election to 
use the Company Cellphone for unapproved or personal uses was at his own risk. 
B. 
The Magistrate Judge’s Decision To Issue His Ruling While 
Defendant Kao’s Criminal Case Is Still Pending Was Not Clearly 
Erroneous. 
Defendant Kao’s objection regarding the asserted premature timing of the 
Magistrate Judge’s ruling is without merit.  Defendant Kao has already pled guilty 
to the charges in the instant case, and his testimony is not required for the return of 
the Company Cellphone.  Since Defendant Kao had no right to privacy in the data 
on the Company Cellphone, any testimony he may believe he is precluded from 
giving is irrelevant.  If the Company Cellphone had not been seized by the DOJ, 
PacMar still would have been entitled to recover the Company Cellphone in its 
entirety, including all data stored therein, directly from Defendant Kao.  Further, as 
previously explained, PacMar had a right to inspect the Company Cellphone at all 
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times that it was in Defendant Kao’s possession.  Thus, there is no threat that the 
return of the Company Cellphone could implicate any of Defendant Kao’s rights, 
Fifth Amendment-based or otherwise. 
C. 
The Magistrate Judge’s Finding That Defendant Kao Had No 
Reasonable Expectation of Privacy In The Company Cellphone 
Was Not Clearly Erroneous.  
Just as he did in his Memorandum in Opposition to the Motion, Defendant 
Kao extracts quotes from documents provided as evidence of the terms and 
conditions of the use of the Company Cellphone by PacMar.  However, just as he 
did previously, Defendant Kao omits the relevant portions of the Company’s 
policies.  PacMar’s stated policies clearly set forth that the Company Cellphone was 
subject to PacMar’s right to “monitor equipment, systems, and network traffic at any 
time . . . .”  Exhibit 3 to Motion at 8. 
Defendant Kao similarly raises alleged issues with the dates on certain 
evidentiary documents.  However, conspicuously absent from Defendant Kao’s 
Objections are any claim that he was not aware of the policies, and certainly not any 
such claims from 2018 to 2020, when Defendant Kao served as the President and 
CEO of PacMar, a role which included supervising and overseeing the development, 
implementation of, and compliance with said policies.  See Ota Supp. Decl. ¶ 7. 
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D. 
The Company Cellphone Data Is Not Defendant Kao’s Work 
Product. 
Defendant Kao again raises inapplicable standards of law to liken the request 
by PacMar for the return of its property to a government search.  PacMar is not a 
government entity, and is not bound by the restrictions placed on governmental 
entities in conducting a search and/or seizure of property, despite Defendant Kao’s 
misplaced attempts to foist such burdens on PacMar.  Nor is PacMar requesting any 
“government workproduct.”  Objections at 13. 
Likewise, PacMar’s request for the return of its own property is not akin to a 
FOIA request as Defendant Kao argues.  Contrary to Defendant Kao’s 
mischaracterizations, PacMar is only seeking the return of its own property insofar 
as the data stored on the Company Cellphone is PacMar’s property and was, at all 
times, subject to PacMar’s monitoring, inspection, and requests for return.  See 
Exhibit 3 to Motion at 8 (“For security and network maintenance purposes, 
Designated IT Personnel will monitor equipment, systems, and network traffic 
at any time, per Martin Defense Group’s Monitoring and Systems/Communications 
Protection Policy.” (emphasis added)); Exhibit 4 to Motion (“At any time upon 
request by Company management, the employee shall produce the mobile device 
for return or inspection.” (emphasis added)). 
Defendant Kao further argues that PacMar’s suggestion that the data be turned 
over via a Cellebrite report somehow converts the data from PacMar’s property into 
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the “workproduct” that is “part of a continuing investigation and/or criminal action.”  
Objections at 14.  Again, despite Defendant Kao’s mischaracterization of PacMar’s 
request for return of property (as is proper under Rule 41(g), see Motion at 6–7 
(citing United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172 (9th 
Cir. 2010), overruled on other grounds in Demaree v. Pederson, 887 F.3d 870 (9th 
Cir. 2018) (per curiam)), the data itself is PacMar’s property, and not the product of 
the DOJ’s investigation into Defendant Kao’s criminal conduct. 
Defendant Kao claims that a Cellebrite report is somehow more inclusive of 
data and information stored on the Company Cellphone than the device itself.  This 
argument is nonsensical.  Indeed, if the Company Cellphone had not been seized by 
the DOJ, PacMar would have had the opportunity and the right to recover the 
physical device, as well as to use any number of methods to recover any and all data 
stored therein.  The reference to a Cellebrite report was made only on the 
understanding that the data is portable in that form for return to PacMar by the DOJ, 
which has stated its intention to keep the physical device. 
Defendant Kao’s attempts to cast the Motion as a “wide-net search for 
information” are similarly baseless and mere conjecture.  As explained in the 
Motion, as the then-President and CEO of PacMar at the time of his arrest, Defendant 
Kao had access to critical business and proprietary information through his 
Company Cellphone.  See Motion at 9–10. 
Case 1:21-cr-00061-LEK     Document 95     Filed 03/23/23     Page 19 of 22  PageID.581

 
17 
E. 
The Specific Contents of the Cellphone Data Are Irrelevant To 
PacMar’s Right To The Return Of The Property. 
Defendant Kao correctly identifies the reasoning supporting Judge Trader’s 
Order: “Mr. Kao had no reasonable expectation of privacy as to any of the data.”  
Objections at 18.  He claims that Judge Trader could not have made such a finding 
“without knowing the types of personal files that were on the phone.”  Defendant 
Kao again misses the point: he has no right to privacy because the Company 
Cellphone and Cellphone Data are PacMar’s property, and PacMar had a right to 
access the Cellphone Data at any time.  See Discussion, supra § IV.A. 
Defendant Kao’s argument only further reinforces Judge Trader’s sound 
reasoning and correct ruling: if Defendant Kao used the device for personal and/or 
non-work related reasons, he did so with the knowledge that he did not have any 
right to privacy when using the Company Cellphone.  The contents of a device do 
not give rise to any expectation of privacy, just as conducting criminal activity in an 
alley does not give rise to an expectation of privacy in that location.  Even if the 
contents are something that Defendant Kao wanted to keep private, it is the method 
and circumstance of the instrumentality that are relevant to the analysis.  In other 
words, even though Defendant Kao’s Company Cellphone may contain information 
that he does not want to be revealed, it was his knowledge that he was using a 
Company-owned and controlled device that renders his claims of privacy invalid. 
Case 1:21-cr-00061-LEK     Document 95     Filed 03/23/23     Page 20 of 22  PageID.582

 
18 
F. 
No Alternatives to a Complete Return of PacMar’s Property Were 
Appropriate. 
Defendant Kao’s final objection asserts that less drastic options to the DOJ’s 
return of the Cellphone Data to PacMar were appropriate.  Again, Defendant Kao 
misses the point, as it’s premised on the incorrect belief that he possessed a privacy 
interest in the Cellphone Data..  As stated in Magistrate Judge Trader’s Order and 
discussed at length in prior briefs and herein, “[The Company Cellphone] and all of 
the business and personal data stored therein . . . , are the property of PacMar 
pursuant to PacMar’s policies which were acknowledged by Defendant Kao and that 
Defendant Kao has no reasonable expectation of privacy with respect to the 
Cellphone Data.”  Order at 2; see also Discussion, supra §§ IV.A and C. 
Thus, all of the data which Defendant Kao claims should be “segregated” or 
reviewed by a special master, being the exclusive business property of PacMar, is 
not subject to segregation or further review. Ordering the return of PacMar’s 
property is not a “drastic” measure by any means, it is simply the logical next step 
for the DOJ which has stated it is willing and able to return a copy of the Cellphone 
Data without delay. 
V. 
CONCLUSION 
For the foregoing reasons, and any further adduced at the hearing on this 
matter, PacMar respectfully requests that the Court deny Defendant Kao’s 
Case 1:21-cr-00061-LEK     Document 95     Filed 03/23/23     Page 21 of 22  PageID.583

 
19 
Objections and affirm the Magistrate Judge’s Order to return the data stored on the 
Company Cellphone to PacMar. 
DATED: Honolulu, Hawaii, March 23, 2023. 
/s/  Jesse W. Schiel 
DAVID M. LOUIE 
JESSE W. SCHIEL 
 
Attorneys for Movant 
PACMAR TECHNOLOGIES LLC 
f/k/a MARTIN DEFENSE GROUP, 
LLC f/k/a NAVATEK LLC
Case 1:21-cr-00061-LEK     Document 95     Filed 03/23/23     Page 22 of 22  PageID.584

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