The HP Saga: The HP Way … to Jail?

8 Sep ’06

The HP board surveillance scandal keeps expanding – HP Board Chair Patricia Dunn’s investigation – and the pretexting carried out under it – apparently also extended to the CNet reporters to whom leaks were made – perhaps because the brain trust that conceived this farce thought it would be nice to someday see the names Patricia Dunn and Richard Nixon in the same sentence (you saw it here first). CNet’s report is here. Yes, proof once more that truth is much, much stranger than fiction.

Now AP and the Mercury News are reporting on the possibility of the California AG laying criminal charges. It’s still not clear whether HP will be the subject of those charges, relying as it will on the “shocked, shocked to discover that pretexting is going on here” defense popularized by anyone who has ever hired a contractor to do the risky business. And of course now it’s battened down the hatches on what it new, when:

HP spokesman Ryan Donovan declined to comment Thursday on whether HP directors knew in advance that the investigators would pretext. The company has not disclosed which private investigation firm it employed.

My guess is that “HP spokesman Ryan Donovan” will be nervously rolling ball bearings in his hand by the end of the month.

One other note – the NYT reports that HP says its counsel advised Dunn that the surveillance was legal and proper. Business Week’s report puts Larry Sonsini in the story. I’m going to speculate that there have been many late nights for someone at Wilson Sonsini lately as they comb through the emails figuring out exactly what the firm knew when and precisely what advice was given. Also, while it would be difficult to swing a dead cat in the Valley and not hit a Wilson Sonsini lawyer, that firm, and particularly Larry Sonsini’s, visibility in this mess and in the option backdating controversy (brought to you courtesy of the many shareholders who now have just a little less coin in their jeans) as well has to have some of its partners nervously adjusting their suspenders.

A propos (?) of that, Viet Dinh, man-in-the-middle Tom Perkins’ attorney, had an interesting and oddly specific quote in the Mercury piece:

“The facts are not totally in,” Dinh said. “But one thing that is clear is pretexting to get personal records is illegal under federal law and California law. Any lawyer who thinks that lying to get private telephone records is legal needs to evaluate his bar license.”

Calls for Dunn’s resignation are now littered across the ‘sphere. Will California AG Lockyer’s comments be her professional epitaph?

“I have no settled view as to whether or not the chairwoman’s acts were illegal, but I do think they were colossally stupid,” Attorney General Bill Lockyer told the Mercury News in an interview.

Meanwhile, HP’s paeans to its integrity continue, irony AWOL.

Update: More from the NYT (they were also targeted) and GrokLaw (with much detail and prodigiously linked).

Update: David Fraser chimes in with an excellent post on Canadian law as it applies to pretexting.

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