Saturday, September 16, 2006
After requesting documents from Hewlett-Packard regarding the "pretexting" used to obtain private telephone records of board members and journalists, the Oversight and Investigations Subcommittee of the House Energy and Commerce Committee has jumped into the fray with both feet by asking four witnesses to testify on September 28. The Subcommittee sent letters to soon-to-be-former Chairwoman Patricia Dunn, General Counsel Ann Baskins, outside lawyer Larry Sonsini, and a Boston-area investigative firm owner, Ronald DeLia, who has been the subject of speculation that his firm carried out the pretexting. A San Jose Mercury News story (here) identifies the head of H-P's global security unit, Anthony Gentilucci, as another likely witness because of his involvement in the investigation and possible connections to DeLia.
Will any of these witness actually testify? If DeLia did engage in pretexting, most likely he will assert the Fifth Amendment privilege, although that will not necessarily spare him the unseemly charade of being dragged in front of the Congressmen to be harangued about the assertion of his constitutional right. Any other course at this point would be foolhardy, with federal and state criminal investigations moving forward. Gentilucci would be in a similar position if he oversaw the work of outside investigators and knew about the use of pretexting.
Baskins and Sonsini could assert the Fifth Amendment, but a more likely scenario would be to raise attorney-client privilege issues. Gentilucci would also be in a position to assert the privilege for conversations with in-house lawyers. Sonsini's e-mail exchange with former H-P director Tom Perkins mentions Baskins' involvement in overseeing the internal investigation of leaks that led to the pretexting to track down the person speaking with the media, so her role would involve both privilege and work product concerns. Sonsini and his firm, Wilson Sonsini, is the company's long-time outside counsel, so his involvement, however limited or extensive it might be, in the investigation of the investigation would raise the same privilege and work product issues. The Subcommittee could ask H-P to waive its attorney-client privilege, although the irony of doing so after a recent Senate hearing criticizing the Department of Justice for doing the same thing would be hard to overlook -- then again, Congress has never been shy about taking a "do as I say, not as I do" attitude.
Dunn could assert the company's attorney-client privilege for any discussions with Baskins and lawyers in her office, or with Sonsini and other outside lawyers, although her "defense" has been that she had to recuse herself from much of the internal investigation because she was as much a target as other directors. Given her asserted uninvolvement in the investigation, she would likely not have a need to assert the Fifth Amendment, unless her participation was greater than has been disclosed. Dunn may have to appear to take the berating from the Subcommittee members, once again put in the lead role of delivering the mea culpas as she winds down her role as chair of the board. The hearing may turn out to be much ado about nothing, but at least Congressional hearings, or at least the threat of them, are always entertaining. A Marketwatch story (here) discusses the Subcommittee's letters to the potential witnesses. (ph)