September 28, 2006
The HP Hearings
Posted by Gordon Smith

I turned on the webcast of the House Committee on Energy and Commerce hearings on HP just in time to see my representative (Tammy Baldwin) on the screen. She is railing against HP, and advocating anti-pretexting legislation, even though she thinks it is already illegal. The declared purpose of the hearing is to investigate HP, but listening to the various committee members, I notice the common theme: we're on the case! They have been working on anti-pretexting legislation, and the events at HP will surely facilitate passage of that legislation.

The committee called a long panel of witnesses, including former General Counsel Ann Baskins and many of the investigators. All of them took the Fifth, which peeved members of the Committee. One of the members asked the Chair why he was wasting the Committee's time!

Now Patricia Dunn and Larry Sonsini are on the hot seats. No big surprises in the opening statements. The main theme: we didn't know anything illegal was happening. Dunn said she thought that phone records could be obtained from publicly available sources. "I am not a lawyer," she observes, as if only lawyers would wonder whether private phone records were obtained legitimately.

The first question from the Committee addresses this issue: what in your experience would suggest to you that you could obtain phone records from publicly available sources? She portrays herself as a rube, completely naive about such things.

Sonsini also claims ignorance about pretexting.  He suggests that current laws do not clearly proscribe pretexting, and he endorses legislation making pretexting clearly illegal.

Ok, ok. I get it. None of us was an expert in pretexting, but wouldn't it occur to someone that obtaining private phone records is at least a little dicey? Perhaps ethically problematic, if not illegal? This looks like a classic illustration of this principle: when something bad happens and the only explanations are that someone was evil or stupid, that person will (almost) always portray himself or herself as stupid. Even extreme stupidity is preferable to knavery.

UPDATE: Congresswoman Diana DeGette is a former lawyer, and she has obviously taken some depositions. Her questioning of Patricia Dunn and Larry Sonsini is tough. DeGette is very impressive.

UPDATE2: There were laughs all around when Patricia Dunn answered Committee Chair Joe Barton's question, "If I just called you up and asked to see your phone records, would you send them to me." She replied, "In your position, I would." Barton responded, "I wouldn't send you mine!" So why were people laughing at Dunn's response? I laughed, too, because it seemed so ridiculous. She has gone too far with the "helpless little girl" routine, which doesn't gibe with her reputation as the 17th most powerful woman in the world.

UPDATE3: When I referred to Ann Baskins as the "former General Counsel," I didn't realize that she had resigned today. Dunn is pointing her finger at HP's internal lawyers, and Baskins was lawyer #1.

UPDATE4: The W$J Law Blog is onsite in DC, live-blogging the hearing. Worth reading. Peter wonders whether Larry Sonsini should have asked more questions. Among other things he said this afternoon, Sonsini stated, "I was relying on the HP legal department."

Meanwhile, back at the ranch, Baskins' lawyers issued this statement on her behalf: ""Please understand, however, that Ms. Baskins very much wants to testify and discuss these matters with the Subcommittee. Were she to do so, we are firmly convinced that the Subcommittee would recognize that she acted legally and ethically at all times. Given the current environment, however, Ms. Baskins simply has no choice."

UPDATE5: Tammy Baldwin asks the crucial question: "How did you come up with the names Kona I and Kona II?" Dunn said that she was on vacation in Kona when all of this started, and she was asked to provide a code name.

UPDATE6: Is email tracing legal? I don't know, but Fred Adler of HP's investigations unit believes that it is, and he said that he has used it about a dozen times while working for HP. The Committee members are aghast, so look for a new section on that anti-pretexting statute.

UPDATE7: Remember the report of Jay Keyworth's response when he was identified as the leaker in the HP board meeting: "Why didn't you just ask?" Larry Sonsini just confirmed what newspapers had already reported, that Sonsini did ask Keyworth when the leaks first started. An interesting exchange in Keyworth, apparently including some comments by Keyworth's attorney, appears at ProfessorBainbridge.com.

UPDATE8: I had to leave the hearing before seeing Mark Hurd's testimony, but the media accounts suggest that it wasn't as eventful as the rest of the hearing. My guess is that this story now moves to the inside pages, with occasional updates on Patricia Dunn, Ann Baskins, and the investigators, but not much of relevance to Hurd. He gets a pass because he started as CEO after the investigations were underway, he played less central a role than Dunn, and he's otherwise done a bang-up job managing the company. Finally, Jay Keyworth's leaking will not generate much more heat. Leaking is simply not news in the way that pretexting became news.

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