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Marvell Alleges Editing of Infamous GC Voice Mail Message
The Recorder
May 07, 2009
Oh no! Rose Mary Woods is among us!
The most famous and scandalous tape recording in Silicon Valley legal lore has been edited! cry lawyers for Marvell Semiconductor, seeking to impeach what will be key evidence in a long-time-coming trade secrets trial.
It was just eight years ago that then-Marvell general counsel Matthew Gloss, patent attorney Eric Janofsky and VP of engineering Kaushik Banerjee rang up Virginia Wei, an in-house lawyer for rival Jasmine Networks. Wei didn't pick up, so Gloss left a message. And then he hung up. Or so he thought. Due to the complexities of speakerphone technology, the trio kept talking, and Wei's voice mail continued to do the thing it does best: record.
Unfortunately for Gloss and Co., they didn't talk about what they were allegedly going to eat that day for lunch. Instead, as the 6th District Court of Appeal later put it, the three "openly discussed theft of Jasmine's trade secrets and the unlawful hiring of the engineering group as well as the potential consequence of jail for the conduct." Key soundbite: "If we took that IP on the pretense of just evaluating it, and put it in our product ...," Marvell IP lawyer Janofsky says at one point, according to the court.
When Jasmine sued Marvell for trade secret theft in September 2001, lawyers for Marvell tried their damnedest to get the damning voice mail excluded from evidence. A Santa Clara County Superior Court judge granted the request, holding it was protected by attorney-client privilege. But the 6th District reversed, holding that the privilege had been waived because of, among other things, the pesky little crime-fraud exception. Last year, the state Supreme Court agreed.
With the privilege arguments gone, and just a week before the trial is set to start, Marvell's lawyers at Latham & Watkins (it used to be Quinn Emanuel Urquhart Oliver & Hedges, but they got DQ'ed) have sicced experts with canine-like hearing ability on the voice mail recording. And what did the experts find?
"Audio forensic expert Bruce Koenig found that 'there are a number of instances where there is a complete loss of signal which would be most consistent with editing the original source of the recordings,'" according to a motion in limine (.pdf) written by Latham's Richard Ulmer Jr., asking the court to once again exclude the evidence.
The lawyers don't detail whether or not there is an 18-minute, 20-second gap in the voice mail recording. Nor do they blame it on former President Nixon's secretary, Rose Mary Woods, who supposedly erased part of the infamous Watergate tape accidentally when she hit the record button instead of the stop button to answer a phone call all while keeping her foot on the device's pedal. Whoops! When Woods tried to show Congress how she could have made such a mistake, she contorted herself into an awkward pose, now dubbed the "Rose Mary Stretch," that left many questioning her explanation and seeking out her yoga instructor.
Actually, some of the Latham lawyers' attacks on the voice mail are just as awkward -- dare we call them a stretch? For instance, they claim that there are two versions of the transcript of the voice mail. OK, that sounds fairly damning. But what's the one difference they cite between the two? (To set the scene: this is when Gloss is finishing leaving the voice message.)
1. Gloss: I look forward to hearing from you. Bye, bye.
Bannerjee: Who do you think they're working with?
2. Gloss: I look forward to hearing from you. Bye bye.
Banerjee: This is **atortious**
Atortious? Indubitably. But it doesn't cast much doubt on the part where they're talking about stealing the other guy's IP.
Marvell's lawyers also say that neither the original recording nor the original backups were ever produced by Jasmine. And they contend that Jasmine has nine other recordings of the voice mail "which differ among themselves." They also delve deep into how Jasmine made a recording of the original voice mail, which they call "not a forensically sound manner of preservation."
In sum, they say the voice mail should be excluded because of Jasmine's "abuse of the discovery process," because the voice mail can't be authenticated and because it's hearsay. Why didn't Nixon's lawyers think of this?
Jasmine's lawyers at McGrane Greenfield have yet to answer the motion, but partner William McGrane pointed out that the appeals court accepted the recording. "They are fighting an uphill battle," he said.
Veteran Dechert IP litigator Chris Scott Graham observed that judges rarely grant these types of motions in limine .
"Judges are reluctant on motions in limine to exclude key evidence but prefer to see how the trial proceeds before making that decision," said Graham. "However, this is a piece of evidence that the plaintiff will use early and often -- that will put pressure on the trial judge to make a decision."
That'll all be up to Judge Leonard Edwards, who, sadly for Marvell, was not a Nixon appointee.
Editor's note: This piece originally appeared as part of "Going Public," a biweekly column on Silicon Valley's legal community, by Recorder/CalLaw reporter Zusha Elinson.
