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6/29/2007
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Lessons Learned From HP's Pretexting Case

Both the state Legislature and Congress saw fit to pass legislation to clearly make "pretexting" a criminal offense, as a result of the conduct in this case.

If nothing else, Hewlett-Packard's pretexting case brought about changes in the law, achieving public good, a California judge said this week.

During a hearing Thursday, Judge Ray Cunningham dismissed the charges after receiving proof that the defendants had performed community service. Cunningham stated in his dismissal that the defendants' behavior amounted to boardroom politics and a betrayal of trust and honor, at worst -- not criminal activity.

Policymakers passed state and federal legislation making pretexting a criminal offense, while California secured a $14.5 million civil judgment against HP, Cunningham said. The judge pointed out that one defendant, Bryan Wagner, pleaded to federal charges.

"In light of the foregoing, the amount of public good that could come from continued prosecution of this state action would be de minimus, such that, in the interest of justices the charges against the defendants are dismissed," the court documents state. "In addition, the final ground for the dismissal is that there exists in this case a potential defense of reliance on the advice of counsel. Both the state Legislature and Congress saw fit to pass legislation to clearly make 'pretexting' a criminal offense, as a result of the conduct in this case. The law does not require counsel in rendering legal advice to be omniscient about changes in the law."

Former California Attorney General Bill Lockyer had charged the defendants, former HP board chair Patricia Dunn, former ethics chief Kevin Hunsaker, and investigators Ronald DeLia, Matthew DePante, and Bryan Wagner, with felonies. He alleged that they engaged in fraudulent wire communications, wrongful use of computer data, identity theft, and conspiracy to commit those crimes.

California dropped charges against Wagner after he agreed to a deal with federal prosecutors. Cunningham threw out the charges against Dunn several months ago and reduced the felony charges to misdemeanors. The remaining defendants were cleared with this week's dismissal.

The charges stemmed from an investigation into HP's board members to find the source of media leaks. When one board member resigned in protest, word leaked that investigators working for the company had lied to obtain personal phone records of journalists, board members, and families of both.

The incident spawned a public relations nightmare for HP, congressional hearings, and legislative discussions about whether lying to obtain records was or was not covered by existing laws like those prohibiting fraudulent wire communications and identity theft. Most involved in the investigation either claimed not to be aware of the tactics investigators had used or said they believed that investigators' activities were legal.

Representatives of HP said the company would not comment on the matter.

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