Thursday, October 5, 2006

Five Charged in H-P Pretexting Case

It took a few weeks from the initial assertion that a crime took place, but California Attorney General Lockyer's office finally filed charges against five defendants in the Hewlett-Packard  pretexting case, the most prominent being former chairwoman Patricia Dunn.  The other defendants are former chief ethics officer Kevin Hunsaker, and outside investigators Ronald DeLia (Massachusetts), Matthew Depante (Florida), and Bryan Wagner (Colorado).  DeLia served as the main contact between the various firms retained to conduct the investigation of leaks from H-P's board and journalists that included pretexting and corporate executives.  The felony complaint (available below) charges the defendants with conspiracy, wire fraud, misuse of computer data, and unauthorized use of personal identity data.  The major focus is on the actions of Hunsaker and DeLia, and Dunn's role, at least as recounted in the overt acts for the conspiracy, appears to be supervisory more than anything else, although she is accused of giving DeLia the home, cellular, and office telephone numbers for H-P board members. 

Depante and Wagner go unmentioned in the list of overt acts for the conspiracy, and the other charges simply recite the statutory provision.  The supporting declaration (available below) provides a bit more detail regarding the State's evidence, particularly the role of Depante's and Wagner's firms, but not  much beyond what is already known about the investigation.  While Depante and Wagner were among the investigators who actually carried out the pretexting, their conduct occurred outside California, and hence beyond the Attorney General's jurisdiction except through the conspiracy count (recall the scope of Pinkerton liability for the acts of co-conspirators).

Two other senior H-P executives who were not indicted are mentioned in the overt acts: former general counsel Ann Baskins and former security chief Anthony Gentilucci.  The overt acts seem to put Gentilucci in the middle of the action involving Hunsaker and DeLia, and it may be that he has agreed to cooperate and so is not named as a defendant but will enter a plea agreement later.  Baskins rates a single mention in Overt Act 3 describing a communication from DeLia to Dunn and Baskins about obtaining telephone records by a "ruse."  It's not clear to me why Baskins was not included in the indictment, but she may be cooperating with the investigation and will avoid charges because of a relative lack of involvement compared to Hunsaker and Dunn.  She may prove to be a crucial witness, and could receive immunity for her testimony.

All of the defendants except Dunn asserted the Fifth Amendment at the House Subcommittee hearing on September 28 (see earlier post here).  Dunn testified extensively, and advanced her position that she did not know that pretexting was wrong and thought that personal telephone records could be obtained by asking the company for them -- an assertion that drew ridicule.  For Dunn, the "honest-but-ignorant-chairwoman" defense has already been laid out before the Subcommittee, so it is unlikely she will deviate from that course.  Information also came out that Dunn will begin undergoing treatment for ovarian cancer (see Reuters story here). (ph)

Download dunn_felony_complaint.pdf

Download dunn_felony_complaint_supporting_declaration.pdf

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